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XIV.A. Emotional Harm

A background feature in our cases so far has been physical harm to the plaintiff. Our breakdown of the cause of action for Negligence (“big-N”) comprises duty, breach (“little-n negligence”), cause-in-fact, proximate cause, and harm. So if there are ways in which courts don’t wish to consider non-physical harm, why not save that for the fifth element instead of our current exploration of the first? The answer lies in the catch-all function that duty plays: it’s meant to be an on/off gate, something determined as much as possible as a matter of law and early in a case, to see whether a case can be dismissed – even if the facts are as the plaintiff alleges.

Traditionally, claims for purely emotional harm, with no corresponding physical element, were dismissed in just this fashion. Thus a review of claimed harm is analytically parked in the duty category, even as it becomes, awkwardly, a “no” answer to the ungainly question: “Does a defendant have a duty not to inflict purely emotional harm upon someone?”

However awkward, the initial rule was simple: if there were no physical element to the defendant’s behavior towards the plaintiff (at least harm, and sometimes more broadly no physical “impact”), then there’s no case. Today’s situation is much more nuanced, as courts overcame a reluctance to entertain such cases and started, in common law fashion, to consider fact patterns in which a case could go forward despite no physical element. (But note: we are speaking here of purely emotional harm. Oddly, it’s been uncontroversially common for defendants to compensate plaintiffs for emotional harm so long as there is an initial physical hook. If someone’s negligence breaks my foot, I can sue not only for doctors’ bills to mend the break, but also pain and suffering – emotional harm – and lost wages – economic harm.)

The cases in this section explore the patchwork of exceptions as various jurisdictions have permitted them, one state at a time. The result, of course, is not a coherent whole that can be represented by a simple or even complicated flow chart. A case from one jurisdiction might flatly contradict the result in another jurisdiction. The aim is to come away with an understanding of some of the exceptions that have been entertained and the rationales behind them (as well as the arguments against them). And then to be in a position, more generally, when confronted with fact patterns in other doctrinal areas that you think cry out for a day in court, to argue in a legal mode for why an exception should or shouldn’t be made. The history of the doctrine of purely emotional harm is a history of boundary pushing, with lessons perhaps transferrable to any area in which the law is thought to be ripe for expansion.

As you’ll see, some of the exceptions have to do with allowing mere physical impact as a gateway, rather than actual physical harm. Others have to do with being in a “zone of danger,” with physical harm a possibility, even though it didn’t come about. (Indeed, in intentional tort, isn’t that what assault is?) Intentional wrongdoing may seem less worthy of solicitude, so we also glimpse, outside of negligence entirely, the willingness of some courts to forge a new wrong of “intentional infliction of emotional distress.” We see exceptions for the highly specific category of contemporaneously witnessing at close range the death of a family member. And finally, we see some attempts to avoid the highly specific and instead craft a more general standard for the negligent infliction of (purely) emotional distress.

  • 1 Falzone v. Busch--"The Almost Automobile Accident"

    Should plaintiffs be allowed to sue for emotional distress which is not connected to any physical injury?

    1
    45 N.J. 559 (1965)
    2
    214 A.2d 12
    3
    CHARLES FALZONE AND MABEL FALZONE, PLAINTIFFS-APPELLANTS,
    v.
    LEONARD R. BUSCH, DEFENDANT-RESPONDENT.
    4

    The Supreme Court of New Jersey.

    5
    Argued September 14, 1965.
    6
    Decided October 25, 1965.
    7

    561*561 Mr. Herbert C. Kaplan argued the cause for the plaintiffs-appellants (Messrs. Kaplan, Feingold & Kaplan, attorneys; Mr. Herbert C. Kaplan on the brief).

    8

    Mr. John A. Lynch, Jr. argued the cause for the defendant-respondent (Messrs. Lynch, Murphy, Mannion & Lynch, attorneys; Mr. John A. Lynch, Jr., on the brief).

    9

    The opinion of the court was delivered by PROCTOR, J.

    10

    The question before us on this appeal is whether the plaintiff may recover for bodily injury or sickness resulting from fear for her safety caused by a negligent defendant, where the plaintiff was placed in danger by such negligence, although there was no physical impact.

    11

    The complaint alleges in the first count that the plaintiff, Charles Falzone, was standing in a field adjacent to the roadway when he was struck and injured by defendant's negligently driven automobile. The second count alleges that the plaintiff, Mabel Falzone, wife of Charles, was seated in his lawfully parked automobile close to the place where her husband was struck and that the defendant's negligently driven automobile "veered across the highway and headed in the direction of this plaintiff," coming "so close to plaintiff as to put her in fear for her safety." As a direct result she became ill and required medical attention. There is no allegation that her fear arose from apprehension of harm to her husband. In the third count plaintiff, Charles Falzone, seeks damages per quod.

    12

    The Law Division granted the defendant's motion for summary judgment on the second and third counts, holding that it was constrained to follow the existing New Jersey rule that where there is no physical impact upon the plaintiff, there can be no recovery for the bodily injury or sickness resulting from negligently induced fright. We certified the plaintiffs' appeal before it was considered by the Appellate Division.

    13

    562*562 Neither this Court nor the former Court of Errors and Appeals has considered a case directly presenting this question. However, since a decision of our former Supreme Court in 1900, Ward v. West Jersey & Seashore R.R. Co., 65 N.J.L. 383, it has been considered settled that a physical impact upon the plaintiff is necessary to sustain a negligence action. See e.g., Greenburg v. Stanley, 51 N.J. Super. 90, 106 (App. Div. 1958), modified on other grounds 30 N.J. 485 (1959).

    14

    In Ward, the complaint alleged that the plaintiff, while driving on a highway, was permitted without warning from the defendant railroad to drive upon a public crossing of its tracks in the face of an approaching train; that the defendant, by improperly lowering the gates before the plaintiff was off the tracks, subjected him to "great danger of being run down and killed by said train" and caused him to be "shocked, paralyzed, and otherwise injured." 65 N.J.L., at p. 383. On the defendant's demurrer, the court stated the issue: "[W]hether, in an action for negligence, the mere apprehension of personal injuries, which are not in fact received, will support an action, when physical suffering follows as a consequence of the mental disturbance." Id., at p. 384. The court recognized a division of authority in other jurisdictions but chose to follow those decisions which denied liability in the absence of impact.[1] Three reasons for denying recovery were set forth in the opinion. The first was that physical injury was not the natural and proximate result of the negligent act:

    15

    "The doctrine of non-liability affirmed in the several opinions already referred to, rests upon the principle that a person is legally responsible only for the natural and proximate results of his negligent 563*563 act. Physical suffering is not the probable or natural consequences of fright, in the case of a person of ordinary physical and mental vigor; and in the general conduct of business, and the ordinary affairs of life, although we are bound to anticipate and guard against consequences, which may be injurious to persons who are liable to be effected [sic] thereby, we have a right, in doing so, to assume, in the absence of knowledge to the contrary, that such persons are of average strength both of body and of mind." Id., at p. 385.

    16

    Second, the court concluded that since this was the first action of its kind in New Jersey, the consensus of the bar must have been that no liability exists in the absence of impact. Id., at pp. 385-386. The third reason was "public policy" which the court explained by quoting with approval from Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (Ct. App. 1896):

    17

    "If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigations in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture and speculation. The difficulty which often exists in cases of alleged physical injuries, in determining whether they exist, and, if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for unrighteous[2] or speculative claims." Ward, supra, 65 N.J.L., at p. 386.

    18

    We think that the reasons assigned in Ward for denying liability are no longer tenable, and it is questionable if they ever were. The court there first stated that it is not "probable or natural" for persons of normal health to suffer physical injuries, when subjected to fright, and that since a person whose acts cause fright alone could not reasonably anticipate that physical harm would follow, such acts cannot constitute negligence as to the frightened party. It appears that the court decided as a matter of law an issue which we believe is properly determinable by medical evidence. An Irish court as early as 1890 recognized the possibility of a causal connection 564*564 between fright and physical injury in a normal person, Baron Palles expressing his view in these words:

    19

    "* * * I am of opinion that, as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence cause fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be `a consequence which, in the ordinary course of things would flow from the' negligence, unless such injury `accompany such negligence in point of time.'" Bell v. Great Northern Railway Co., L.R. 26 Ir. 428, 442.

    20

    And even in Spade v. Lynn & B.R. Co., 168 Mass. 285, 288, 47 N.E. 88, 89 (Sup. Jud. Ct. 1897) (relied upon in Ward), where recovery was denied for the physical consequences of fright, the court recognized that:

    21

    "Great emotion, may, and sometimes does, produce physical effects * * *. A physical injury may be directly traceable to fright, and so may be caused by it. We cannot say, therefore, that such consequences may not flow proximately from unintentional negligence; * * *"

    22

    Moreover, medical knowledge on the relationship between emotional disturbance and physical injury has steadily expanded, and such relationship seems no longer open to serious challenge. See e.g., Smith, "Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli," 30 Va. L. Rev. 193 (1944); Smith and Solomon, "Traumatic Neuroses in Court," 30 Va. L. Rev. 87 (1943); Goodrich, "Emotional Disturbance as Legal Damage," 20 Mich. L. Rev. 497 (1922).

    23

    New Jersey courts have not generally adhered to the notion that fright cannot be the proximate cause of substantial physical injury, and three rules of law inconsistent with the Ward doctrine have developed. It has been held that where a person is injured attempting to avoid a hazard negligently created by another, he may recover for the physical consequences of fright even though the immediate injury suffered was slight and was not a link in the causal chain. Thus, in Buchanan v. West Jersey R.R. Co., 52 N.J.L. 265 (Sup. 565*565 Ct. 1890), cited with approval in Ward, a woman standing in a railroad station threw herself to the platform to avoid being struck by a protruding timber on a passing train. "By reason of the shock to her nervous system occasioned by this peril, her health was seriously impaired." 52 N.J.L., at p. 266. The court allowed recovery even though her fright, and not the injury, if any, sustained in the fall, caused her physical suffering. See also Tuttle v. Atlantic City R.R. Co., 66 N.J.L. 327 (E. & A. 1901). Our courts have also been willing to allow recovery for physical injury traceable directly to fright when there is any impact, however inconsequential or slight. Porter v. Delaware, Lackawanna & W.R.R. Co., 73 N.J.L. 405 (Sup. Ct. 1906); and Kennell v. Gershonovitz Bros., 84 N.J.L. 577 (Sup. Ct. 1913). See also Smith v. Montclair Brown and White Cab Co., 6 N.J. Misc. 57, 139 A. 904 (Sup. Ct. 1928) and Greenburg v. Stanley, supra. The application of this rule was illustrated in Porter v. Delaware, Lackawanna & W.R.R. Co., supra, where a woman became ill as the result of her shock at seeing a railroad bridge fall near the place where she was standing. She testified that something fell on her neck and that dust entered her eyes. In allowing recovery for the physical consequences of her fright, the court said either the small injury to her neck or the dust in her eyes was a sufficient "impact" to distinguish the case from Ward. And third, recovery has been permitted where physical suffering resulted from a willfully caused emotional disturbance. Kuzma v. Millinery Workers Union Local No. 24, 27 N.J. Super. 579, 591-592 (App. Div. 1953). See also Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90 (Sup. Ct. 1936); and Harris v. Delaware, Lackawanna and W.R.R. Co., 77 N.J.L. 278 (Sup. Ct. 1909).

    24

    The second reason given in Ward for denying recovery was that the absence of suits of this nature in New Jersey demonstrated the concurrence of the bar with the rule of no liability. We do not believe the court meant to imply that it would deny recovery because of opinions held by lawyers on the legal question presented. And if the court intended to bar the 566*566 cause of action because of a lack of precedent in this State, a sufficient answer is that the common law would have atrophied hundreds of years ago if it had continued to deny relief in cases of first impression. See State v. Culver, 23 N.J. 495, 505-507 (1957).

    25

    Public policy was the final reason given in Ward for denying liability. The court was of the opinion that proof or disproof of fear-induced physical suffering would be so difficult that recovery would often be based on mere conjecture and speculation, and that the door would be opened to extensive litigation in a class of cases where injury is easily feigned. We realize that there may be difficulties in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the problem of tracing a causal connection from negligence to injury is not peculiar to cases without impact and occurs in all types of personal injury litigation. See e.g., Smith v. Brennan, 31 N.J. 353, 365 (1960); Van Rensselaer v. Viorst, 136 N.J.L. 628, 631 (E. & A. 1947); and Millman v. United States Mortgage & Title Guaranty Co., 121 N.J.L. 28, 36-37 (Sup. Ct. 1938). See also Goodrich, supra, at pp. 503-507. As Judge Burke said for the New York Court of Appeals in dealing with the same problem:

    26

    "In many instances, just as in impact cases, there will be no doubt as to the presence and extent of the damage and the fact that it was proximately caused by defendant's negligence. In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims." Battalla v. State, 10 N.Y.2d 237, 242, 219 N.Y.S.2d 34, 176 N.E.2d 729, 731-732 (1961).

    27

    In any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim.

    28

    As to the possibility of actions based on fictitious injuries, a court should not deny recovery for a type of wrong 567*567 which may result in serious harm because some people may institute fraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the requirements as to the sufficiency of evidence, to safeguard against the danger that juries will find facts without legally adequate proof. Smith v. Brennan, supra, 31 N.J., at pp. 365-366. Moreover, the allowance of recovery in cases where there has been an impact, however slight, negates the effectiveness of the no impact rule as a method of preventing fraudulent claims. As stated by Dean McNiece in his comprehensive article dealing with tort liability for psychic injuries:

    29

    "To hold that all honest claims should be barred merely because otherwise some dishonest ones would prevail is stretching the public policy concept very close to the breaking point, especially since it is quite as simple to feign emotional disturbance plus slight impact and get in `under the wire' of one of the exceptions as it is to feign emotional disturbance sans impact. The arbitrary denial of recovery in all cases not falling within the realm of one or another of the exceptions discourages the bringing of meritorious actions and at the same time allows the prosecution of fabricated claims, for surely those capable of perjuring evidence will not hesitate to manufacture one additional feature of the occurrence — a slight impact — to insure recovery." McNiece, "Psychic Injury and Liability in New York," 24 St. John's L. Rev. 1, 31 (1949).

    30

    Ward also asserts that public policy demands denial of recovery in no impact cases to prevent a "flood of litigations." However, there is no indication of an excessive number of actions of this type in other states which do not require an impact as a basis for recovery. And, of more importance, the fear of an expansion of litigation should not deter courts from granting relief in meritorious cases; the proper remedy is an expansion of the judicial machinery, not a decrease in the availability of justice.

    31

    The many eminent legal scholars who have considered the rule denying recovery in the absence of impact are virtually unanimous in condemning it as unjust and contrary to experience 568*568 and logic.[3] The 1888 English case of Victorian Parkways Commissioners v. Coultas, 13 App. Cas. 222, which initiated the doctrine in England and which was followed in Ward, was repudiated in Dulieu v. White & Sons, 2 K.B. 669 (1901),[4] only one year after Ward was decided. And Mitchell v. Rochester Ry. Co., supra, upon which the court in Ward relied so heavily, was expressly overruled in 1961 by the New York Court of Appeals. Battalla v. State, supra. A great majority of jurisdictions now hold that where physical injury results from wrongfully caused emotional stress, the injured person may recover for such consequences notwithstanding the absence of any physical impact upon him at the time of the mental shock. See e.g., Robb v. Pennsylvania Railroad Company, Del., 210 A.2d 709 (Sup. Ct. 1965); Battalla v. State, supra; Colla v. Mandella, 1 Wis.2d 594, 85 N.W.2d 345, 64 A.L.R.2d 95 (Sup. Ct. 1957); Orlo v. Connecticut 569*569 Co., 128 Conn. 231, 21 A.2d 402 (Sup. Ct. Err. 1941); Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540 (Sup. Ct. 1930); Restatement of the Law of Torts § 436(a)(2). Contra, Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). See also Annotation, "Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong," 64 A.L.R.2d 100 (1959). Indeed, Dean Prosser has recently written that the impact requirement "is almost certainly destined for ultimate extinction." Prosser, Torts § 55, p. 351 (3d ed. 1964).

    32

    Our conclusion is that Ward should no longer be followed in New Jersey. We are not dealing with property law, contract law or other fields where stability and predictability may be crucial. We are dealing with torts where there can be little, if any, justifiable reliance and where the rule of stare decisis is admittedly limited. Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 42; Smith v. Brennan, supra, 31 N.J., at p. 361. We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.

    33

    We recognize that where there is no impact a defendant may be unaware of the alleged incident and thus not forewarned to preserve evidence upon which he might base his defense. However, this consideration should not be sufficient to bar a meritorious claim. Rather, it is appropriate that the trial judge charge the jury that an undue delay in notifying the defendant of the incident and the resulting injury may weigh heavily in determining the truth of the plaintiff's 570*570 claim. It is unnecessary to decide here whether an undue delay short of the statute of limitations would justify a dismissal by the trial court.

    34

    The plaintiffs should be given the opportunity of submitting proof that Mrs. Falzone suffered substantial bodily injury or sickness and that such bodily injury or sickness was the proximate result of the defendant's negligence.

    35

    Reversed.

    36

    For reversal — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

    37

    For affirmance — None.

    39

    [1] Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303 (Sup. Jud. Ct. 1880); Ewing v. Pittsburg, C., C. & St. L. Ry. Co., 147 Pa. 40, 23 A. 340 (Sup. Ct. 1892); Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (Ct. App. 1896); Spade v. Lynn & Boston R. Co., 168 Mass. 285, 47 N.E. 88 (Sup. Jud. Ct. 1897); and Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222 (1888).

    41

    [2] The word "unrighteous" is an apparent misquotation; the New York Report shows that the New York Court of Appeals used the term "fictitious."

    43

    [3] See Prosser, Torts § 55, pp. 349-352 (3d ed. 1964); 2 Harper and James, The Law of Torts § 18.4, pp. 1031-1039 (1956); McNiece, "Psychic Injury and Tort Liability in New York," 24 St. John's L. Rev. 1 (1949); Smith, "Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli," 30 Va. L. Rev. 193 (1944); Smith and Solomon, "Traumatic Neuroses in Court," 30 Va. L. Rev. 87 (1943); Magruder, "Mental and Emotional Disturbance in the Law of Torts," 49 Harv. L. Rev. 1033 (1936); 1936 Report of N.Y. Law Rev. Comm., 375; Green, "`Fright' Cases," 27 Ill. L. Rev. 761 (1933); Hallen, "Damages for Physical Injuries Resulting from Fright or Shock," 19 Va. L. Rev. 253 (1933); Wilson, "The New York Rule as to Nervous Shock," 11 Cornell L.Q. 512 (1926); Goodrich, "Emotional Disturbance as Legal Damage," 20 Mich. L. Rev. 497 (1922); Throckmorton, "Damages for Fright," 34 Harv. L. Rev. 260 (1921); Burdick, "Tort Liability for Mental Disturbance and Nervous Shock," 5 Colum. L. Rev. 179 (1905); Bohlen, "Right to Recover for Injury Resulting from Negligence Without Impact," 41 Am. L. Reg. 141 (1902).

    45

    [4] "Later cases in the Admiralty Division of the High Court of Justice and in the House of Lords treat Dulieu v. White as settling the law in England; and it may, therefore, be said that the Coultas case has been overruled and the doctrine established in England that there may be recovery for physical injuries resulting from nervous shock without proof of actual impact." Throckmorton, supra, note 2, at p. 262.

  • 2 Portee v. Jaffee--"The Child Dying in the Elevator"

    Should plaintiffs be able to recover damages solely for the emotional distress they feel while watching a loved one suffer and die?

    1
    84 N.J. 88 (1980)
    2
    417 A.2d 521
    3
    RENEE PORTEE, INDIVIDUALLY AND AS GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF GUY PORTEE, DECEASED, PLAINTIFF-APPELLANT,
    v.
    EDITH JAFFEE, NATHAN JAFFEE, WATSON ELEVATOR COMPANY AND ATLANTIC ELEVATOR COMPANY, DEFENDANTS-RESPONDENTS.
    4

    The Supreme Court of New Jersey.

    5
    Argued May 5, 1980.
    6
    Decided July 29, 1980.
    7

    90*90 Joseph Maran argued the cause for appellant (Ira J. Zarin, attorney).

    8

    Isaac Henkoff argued the cause for respondents Edith Jaffee and Nathan Jaffee (Klein, Chester, Greenburg & Henkoff, attorneys).

    9

    Gerald Kaplan argued the cause for respondents Watson Elevator Company and Atlantic Elevator Company (Lieb, Berlin & Kaplan, attorneys).

    10

    The opinion of the Court was delivered by PASHMAN, J.

    11

    We are asked to determine whether a parent can recover damages for the emotional anguish of watching her young child suffer and die in an accident caused by defendant's negligence. In Falzone v. Busch, 45 N.J. 559 (1965), this Court imposed liability for such infliction of mental or emotional distress when negligence created the potential, but not the occurrence, for physical harm to the traumatized individual. The question presented here is whether liability should exist where there was no potential for personal injury, but distress resulted from perceiving the negligently inflicted injuries of another.

    12

    Relying on Falzone, the trial court rejected liability and granted partial summary judgment for defendants on this issue, R. 4:46-3. After the Appellate Division granted plaintiff's motion for leave to appeal, we directly certified the case, R. 2:12-1. 82 N.J. 295 (1980). We now reversed the trial court and remand the matter for further proceedings.

    13

    The factual premises of this appeal are the uncontroverted assertions of plaintiff Renee Portee. In reviewing the dismissal of her claims as legally insufficient, we must accept as true all the allegations of the complaint, the affidavits and products of discovery submitted on her behalf. We must also draw those reasonable inferences that are most favorable to her cause. E.g., Berman v. Allen, 80 N.J. 421, 426 (1979); Heavner v. Uniroyal, Inc., 63 N.J. 130, 133 (1973); Judson v. Peoples Bank 91*91 & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954); R. 4:46-2. The facts which follow are the result of this necessarily indulgent examination of the record.

    14

    Plaintiff's seven-year-old son, Guy Portee, resided with his mother in a Newark apartment building. Defendants Edith Jaffee and Nathan Jaffee owned and operated the building. On the afternoon of May 22, 1976, the youngster became trapped in the building's elevator between its outer door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor.[1] Another child who was racing up a nearby stairway to beat the elevator opened it, saw the victim wedged within it, and ran to seek help. Soon afterwards, plaintiff and officers of the Newark Police Department arrived. The officers worked for four and one-half hours to free the child. While their efforts continued, the plaintiff watched as her son moaned, cried out and flailed his arms. Much of the time she was restrained from touching him, apparently to prevent interference with the attempted rescue. The child suffered multiple bone fractures and massive internal hemorrhaging. He died while still trapped, his mother a helpless observer.

    15

    During the unsuccessful efforts to save Guy Portee's life, the police contacted the office of defendant Atlantic Elevator Company in nearby Belleville, New Jersey. Along with defendant Watson Elevator Company, which designed and built the elevator, Atlantic was responsible for the installation and maintenance of the elevator. The police requested that Atlantic send a mechanic to the building to assist in the attempt to free plaintiff's son. Apparently no one came.

    16

    After her son's death plaintiff became severely depressed and seriously self-destructive. On March 24, 1979, she attempted to take her own life. She was admitted to East Orange General Hospital with a laceration of her left wrist more than two inches deep. She survived and the wound was repaired by surgery, but she has since required considerable physical therapy and presently 92*92 has no sensation in a portion of her left hand. She has received extensive counseling and psychotherapy to help overcome the mental and emotional problems caused by her son's death.

    17

    On December 2, 1976, plaintiff brought suit against the Jaffees and the two elevator companies. The complaint was premised on defendants' negligence in failing to provide a safe elevator.[2] As both general administratrix and administratrix ad prosequendum of the estate of Guy Portee, plaintiff asserted survival and wrongful death claims. N.J.S.A. 2A:15-3,:31-1. She also sued individually seeking damages for her mental and emotional distress caused by observing her son's anguish and death.[3]

    18

    Defendants Edith and Nathan Jaffee moved for summary judgment as to plaintiff's claims for mental and emotional distress on June 27, 1979. After a hearing the trial court granted the motion. In an oral opinion the court stated that Falzone v. Busch, supra, set the outer limits of liability for the negligent infliction of mental and emotional distress. The court noted that the Appellate Division had confirmed this view of Falzone in Burd v. Vercruyssen, 142 N.J. Super. 344 (1976), certif. den., 72 N.J. 459 (1976). Since plaintiff had concededly not been subjected to any risk of physical harm caused by defendants' alleged negligence, the trial court found that plaintiff's claims for psychological injury did not meet the requirements of Falzone.

    19

    Because the trial court considered this Court's decision in Falzone dispositive, we begin our discussion with that case. The plaintiff in Falzone had been placed in fear for her bodily safety 93*93 by negligent conduct. See 45 N.J. at 561. Although she sustained no physical impact, this Court ruled plaintiff could recover damages for substantial bodily injury or sickness induced by fright. Id. at 569. In so holding, the Court overruled a long-established line of cases which had required some physical impact, however slight, to recover for emotional injuries. See, e.g., Tuttle v. Atlantic City R.R. Co., 66 N.J.L. 327 (E. & A. 1901); Consolidated Traction Co. v. Lambertson, 60 N.J.L. 457, 458 (E. & A. 1897); Greenberg v. Stanley, 51 N.J. Super. 90, 106 (App. Div. 1958), mod. on other grounds, 30 N.J. 485 (1959); Justesen v. Pennsylvania R.R. Co., 92 N.J.L. 257 (Sup.Ct. 1919); Ward v. West Jersey & S.R.R. Co., 65 N.J.L. 383 (Sup.Ct. 1900); see also Graf v. Taggart, 43 N.J. 303, 312-313 (1964). It examined the three reasons given for the old rule, see Ward, supra, 65 N.J.L. at 385-386 and found them "no longer tenable." Falzone, supra, 45 N.J. at 563. The first reason — that physical injury was presumed not to be a probable or natural consequence of fright — was perceived by the Court as an issue to be resolved by medical evidence, not judicial presumption. Id. at 563-565. The Falzone Court rejected the second reason — that there was a lack of precedent or consensus in favor of recovery — as specious. Id. at 565-566; see State v. Culver, 23 N.J. 495, 505-507 (1957). The final reason traditionally advanced against liability was the prospect of recovery based on conjecture and speculation and a consequent flooding of the courts with groundless litigation. Falzone, supra, 45 N.J. at 566-567; see Ward, supra, 65 N.J.L. at 386. The Falzone Court responded by observing that the civil litigation process would safeguard against spurious and even fraudulent claims. 45 N.J. at 562. Finding the conventional rationales to be insufficient, the Court overruled Ward and held that "where negligence causes fright from a reasonable fear of immediate personal injury," the frightened person could recover damages for any resulting "substantial bodily injury or sickness." Id. at 569.

    20

    Falzone expressly required that any resulting bodily harm be substantial. Id. It did not, however, explicitly limit liability to cases in which the distressed plaintiff had been subjected to an 94*94 unreasonable risk of physical harm. See id. at 569-570. Nevertheless, since the new cause of action was in derogation of the prior inflexible requirement of physical impact,[4] some decisions interpreted Falzone narrowly. Liability has been denied where the plaintiff suffered distress without having been subjected to a risk of physical harm. Burd v. Vercruyssen, supra; Kern v. Kogan, 93 N.J. Super. 459 (Law Div. 1967). Other cases have recognized the absence of such an express limitation in Falzone. When independently assessing foreseeable risks of emotional distress, courts have found possible liability for the negligent mishandling of a corpse, Muniz v. United Hospitals Med. Cen. Presbyterian Hosp., 153 N.J. Super. 79 (App.Div. 1977), and for the unreasonably aggravating handling of a consumer's complaint about a defective product, Lemaldi v. De Tomaso of America, Inc., 156 N.J. Super. 441 (Law Div. 1978); see also Fiore v. Sears, Roebuck & Co., Inc., 144 N.J. Super. 74, 77 (Law Div. 1976).

    21

    This Court has recognized that Falzone did not place express limits on negligence liability for mental or emotional distress. In Caputzal v. The Lindsay Co., 48 N.J. 69 (1966), we observed that questions of liability for non-intentional conduct were generally governed by the concepts of "duty, and the breach thereof, and proximate, or legal, cause of the injury * * *." Id. at 74. Applying this general analysis to cases involving the infliction of psychological but not physical injury, the Court approved the following formula:

    22
    [L]iability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted, thus then bringing the plaintiff within the "zone of risk." [Id. at 76 (quoting 2 F. Harper & F. James, The Law of Torts § 18.4 at 1036 (1956)]
    23

    95*95 The Court recognized that Falzone had imposed liability occasioned by a risk of physical injury. 48 N.J. at 73. However, there was no requirement in the Caputzal formula that the "zone of risk" of mental or emotional distress coincide with a zone of risk of physical harm. More recently, in Berman v. Allen, supra, we held that where a doctor negligently failed to inform prospective parents that their child would likely suffer from severe genetic defects, the parents could recover damages for the emotional trauma of discovering their child's condition at birth. Id. 80 N.J. at 433.

    24

    Since Falzone, this Court's decisions have shown no hostility to the imposition of liability for negligently caused mental or emotional distress even without an attendant risk of physical harm. Our decision in Berman could support liability in this case. The trauma of witnessing the agonizing death of one's child may be no less substantial than the shocking realization that one's newborn child is profoundly crippled and will remain so for life. Both types of emotional injury also seem equally likely "in a person normally constituted," Caputzal, 48 N.J. at 76. The sole distinction between Berman and the present case may be described in terms of the degree of foreseeability. While in Berman, the mother was necessarily present at the birth of her child, and the father's presence was an all but certain eventuality, here the plaintiff was present at the scene of her son's death only because of the physical proximity of the accident to the mother's residence. Thus, one formulation of the issue before us is whether it was foreseeable that the mother would be observing the death of her young child.

    25

    The possibility that a parent may be near her young child is always substantial. Yet the recognition of a substantial possibility of harm does not resolve the question of liability. The standard is one of reasonable foreseeability, see Caputzal, 48 N.J. at 74-75; more directly stated, we must determine whether defendants owed a duty to the plaintiff that was violated when her child became trapped in the elevator. It might be argued that plaintiff had been continuously subjected to a risk of physical injury by the presence of a defective elevator in her 96*96 building. Although this reasoning would place the present case within the rule of Falzone, it would transform the requirement of a risk of physical injury into the same arbitrary formality as the former rule of physical impact, see supra at 94 n. 4. Rather than adopt this artful yet artificial approach, we address directly whether defendants owed the mother a duty of reasonable care.

    26

    Few notions anywhere in the law are more vague than the fundamental concept of the law of negligence: the duty of reasonable care. This is because few are more closely linked with prevailing community standards of conduct. The issue of negligence is frequently a matter left to the judgment of the community as expressed by a panel of jurors. Although our courts have avoided attaching to this issue the confusing label of "a mixed question of law and fact," the phrase aptly connotes that juries in negligence cases as much make the law as apply it.

    27

    On many occasions, the law of negligence needs no other formulation besides the duty of reasonable care. Other cases, however, present circumstances rendering application of that general standard difficult, if not impossible. Without adequate guidance, juries may impose liability that is not commensurate with the culpability of defendant's conduct.

    28

    This difficulty has been recognized when courts considered liability for mental and emotional distress. We have noted the traditional argument, rejected by this Court in Falzone, that the imposition of such liability unoccasioned by any physical impact would lead to "mere conjecture and speculation." Falzone, supra, 45 N.J. at 566. Even where the causal relationship between conduct and emotional harm was clear, courts would deny liability unless the fault of defendant's conduct could be demonstrated by the occurrence of physical harm to the plaintiff. See id. at 564-565. Under Falzone, it became clear that the creation of a risk of physical harm would be a sufficient indication that defendant's conduct was unreasonable. Without such an indication, it might be argued that a jury could not form a reliable judgment regarding negligence. The question now before us is whether we are left to "mere conjecture and 97*97 speculation" in assessing the culpability of conduct that creates neither the risk nor the occurrence of physical harm.

    29

    The task in the present case involves the refinement of principles of liability to remedy violations of reasonable care while avoiding speculative results or punitive liability. The solution is close scrutiny of the specific personal interests assertedly injured. By this approach, we can determine whether a defendant's freedom of action should be burdened by the imposition of liability. In the present case, the interest assertedly injured is more than a general interest in emotional tranquility. It is the profound and abiding sentiment of parental love. The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare. Against that reassuring background, the flashes of anxiety and disappointment that mar our lives take on softer hues. No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

    30

    Courts in other jurisdictions which have found liability in the circumstances before us have placed limits on this type of negligence liability consistent with their view of the individual interest being injured. In Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) (in bank), the California Supreme Court identified three factors which would determine whether an emotional injury would be compensable because "foreseeable":

    31
    (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. [Id. at 740, 441 P.2d at 920, 69 Cal. Rptr. at 80]
    32

    Those courts which have permitted actions for negligent infliction of emotional injuries unaccompanied by the risk of physical harm have adopted or followed these guidelines. See D'Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Sup. 164, 326 A.2d 129 98*98 (1973); Kelley v. Kokua Sales & Supply, Ltd., 56 Hawaii 204, 532 P.2d 673 (1975); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (Sup.Jud.Ct. 1978); Toms v. McConnell, 45 Mich. App. 647, 207 N.W.2d 140 (1973); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ. App. 1978).

    33

    We agree that the three factors described in Dillon together create a strong case for negligence liability. In any given case, as physical proximity between plaintiff and the scene of the accident becomes closer, the foreseeable likelihood that plaintiff will suffer emotional distress from apprehending the physical harm of another increases. The second requirement of "direct * * * sensory and contemporaneous observance" appears to reflect a limitation of the liability rule to traumatic distress occasioned by immediate perception. The final criterion, that the plaintiff be "closely related" to the injured person, also embodies the judgment that only the most profound emotional interests should receive vindication for their negligent injury.

    34

    Our analysis of the specific emotional interest injured in this case — a fundamental interest in emotional tranquility founded on parental love — reveals where the limits of liability would lie. Addressing the Dillon criteria in reverse order, we find the last — the existence of a close relationship — to be the most crucial. It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling. The genuine suffering which flows from such harm stands in stark contrast to the setbacks and sorrows of everyday life, or even to the apprehension of harm to another, less intimate person.[5] The existence of a marital[6] or intimate familial relationship 99*99 is therefore an essential element of a cause of action for negligent infliction of emotional distress. In the present case, the instinctive affection of a mother for her seven-year-old son would be a sufficiently intimate bond on which to predicate liability.

    35

    The second requirement — that the plaintiff witness the incident which resulted in death or serious injury — is equally essential. We recognize that to deny recovery solely because the plaintiff was not subjected to a risk of physical harm would impose an arbitrary barrier that bears no relation to the injury to his basic emotional stability. See Dillon v. Legg, supra, 68 Cal.2d at 733, 441 P.2d at 915, 69 Cal. Rptr. at 75; Toms v. McConnell, supra, 45 Mich. App. at 653, 207 N.W.2d at 144. Yet avoiding arbitrary distinctions does not entail that a cause of action should exist for all emotional injuries to all the close relatives of the victim. This expansive view would extend judicial redress far beyond the bounds of the emotional interest entitled to protection. To avoid imposing liability in excess of culpability, the scope of recovery must be circumscribed to negligent conduct which strikes at the plaintiff's basic emotional security.

    36

    Discovering the death or serious injury of an intimate family member will always be expected to threaten one's emotional welfare. Ordinarily, however, only a witness at the scene of the accident causing death or serious injury will suffer a traumatic sense of loss that may destroy his sense of security and cause severe emotional distress. As Justice Cardozo stated in his classic formulation, "The risk reasonably to be perceived defines the duty to be obeyed." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928); see 2 F. Harper & F. James, supra, § 18.2 at 1018. Such a risk of severe emotional distress is present when the plaintiff observes the accident at the scene. Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened. The law of negligence, while it redresses suffering wrongfully caused by others, must not itself inflict undue harm by imposing an unreasonably excessive measure of liability. 100*100 Accordingly, we hold that observing the death or serious injury of another while it occurs is an essential element of a cause of action for the negligent infliction of emotional distress.

    37

    The first factor discussed in Dillon — that the plaintiff be near the injured person — embodies the same observations made concerning the other requirements of direct perception and close familial relationship. Physical proximity may be of some relevance in demonstrating the closeness of the emotional bond between plaintiff and the injured family member. For example, one would generally suppose that the risk of emotional distress to a brother who is halfway across the country is not as great as to a mother who is at the scene of the accident. The proximity of the plaintiff to the accident scene increases the likelihood that he will witness the event causing the death or serious injury of a loved one. Yet it appears that if the plaintiff must observe the accident that causes death or serious injury, a requirement of proximity is necessarily satisfied. The risk of emotional injury exists by virtue of the plaintiff's perception of the accident, not his proximity to it.

    38

    An additional factor yet undiscussed is the severity of the physical injury causing emotional distress. The harm we have determined to be worthy of judicial redress is the trauma accompanying the observation of the death or serious physical injury of a loved one. While any harm to a spouse or a family member causes sorrow, we are here concerned with a more narrowly confined interest in mental and emotional stability. When confronted with accidental death, "the reaction to be expected of normal persons," Caputzal, supra, 48 N.J. at 76 (quoting 2 F. Harper & F. James, The Law of Torts § 18.4 at 1035), is shock and fright. We hold that the observation of either death or this type of serious injury is necessary to permit recovery. Since the sense of loss attendant to death or serious injury is typically not present following lesser accidental harm, perception of less serious harm would not ordinarily result in severe emotional distress. Thus, the risk of an extraordinary reaction to less serious injury is not sufficient to result in liability. To impose liability for any emotional consequence of 101*101 negligent conduct would be unreasonable; it would also be unnecessary to protect a plaintiff's basic emotional stability. Therefore, a cause of action for emotional distress would require the perception of death or serious physical injury.

    39

    The cause of action we approve today for the negligent infliction of emotional distress requires proof of the following elements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. We find that a defendant's duty of reasonable care to avoid physical harm to others extends to the avoidance of this type of mental and emotional harm. As Chief Justice Weintraub stated:

    40
    Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. [Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962) (emphasis in original)]
    41

    Our inquiry has led us to conclude that the interest in personal emotional stability is worthy of legal protection against unreasonable conduct. The emotional harm following the perception of the death or serious injury to a loved one is just as foreseeable as the injury itself, for few persons travel through life alone. Ultimately we must decide whether protecting these emotional interests outweighs an interest against burdening freedom of conduct by imposing a new species of negligence liability. We believe that the interest in emotional stability we have described is sufficiently important to warrant this protection. At the same time we are confident that limiting judicial redress to harm inflicted on intimate emotional bonds by the death or serious injury of a loved one serves to prevent liability from exceeding the culpability of defendant's conduct.

    42

    A final matter remaining for consideration is the effect of the injured party's own negligence on plaintiff's right to recover. Under our Comparative Negligence Act, L. 1973, c. 146, N.J.S.A. 2A:15-5.1 to -5.3, the injured person's own recovery would be reduced by the proportion of his negligence so long as it was "not greater than the negligence of the person against 102*102 whom recovery is sought." N.J.S.A. 2A:15-5.1. To allow a plaintiff seeking damages for emotional injuries to recover a greater proportion than the injured party would surely create liability in excess of the defendant's fault. We therefore hold that any recovery for emotional harm resulting from perceiving the death or serious injury to another shall be reduced by the proportion of the injured party's negligence, as well as, of course, any contributing negligence of the plaintiff himself.

    43

    For the foregoing reasons, the judgment of the Superior Court, Law Division, is reversed.

    44

    For reversal — Chief Justice WILENTZ, and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.

    45

    For affirmance — none.

    47

    [1] The record does not indicate the floor on which the elevator started.

    49

    [2] We therefore find no occasion to consider whether liability would exist against defendant landlords for breach of their implied warranty of habitability. See Trentacost v. Brussel, 82 N.J. 214 (1980).

    51

    [3] The victim's father, who was estranged from plaintiff at the time of the fatal incident, filed a separate suit against defendants. Although the actions of both parents were consolidated for trial, the father's claims are not before us.

    53

    [4] While inflexible, the traditional requirement of physical contact was often a mere formality. Contact unrelated to the source of plaintiff's fright was sufficient to permit recovery of damages for mental or emotional distress. See, e.g., Greenberg v. Stanley, 51 N.J. Super. at 105-106; Porter v. Delaware, L. & W.R.R. Co., 73 N.J.L. 405, 406 (Sup.Ct. 1906); Buchanan v. West Jersey R.R. Co., 52 N.J.L. 265 (Sup.Ct. 1890); see also Friel v. Vineland Obstetrical and Gynecological Prof. Ass'n, 166 N.J. Super. 579 (Law Div. 1979) (physical impact of birth found to permit liability based on negligent medical care).

    55

    [5] A failure to recognize the contrast may have been responsible for the refusal of the New York Court of Appeals to permit this cause of action based on physical harm to another. See Tobin v. Grossman, 24 N.Y.2d 609, 615-617, 249 N.E.2d 419, 422-423, 301 N.Y.S.2d 554, 558-560 (1969).

    57

    [6] The common law action for loss of consortium may be perceived as a claim for negligently inflicted emotional injury. See Ekalo v. Constructive Serv. Corp. of Amer., 46 N.J. 82, 86-91 (1965).

  • 3 Pizarro v. 421 Port Associates--"The Decapitating Elevator"

    Should plaintiffs be allowed to recover for the emotional distress they feel when they witness a nearby stranger getting hurt?

    1
    292 A.D.2d 259 (2002)
    2
    739 N.Y.S.2d 152
    3
    JULIA PIZARRO, Plaintiff, and MARICELA CASTRO, Respondent,
    v.
    421 PORT ASSOCIATES et al., Defendants, and MILLAR ELEVATOR INDUSTRIES, INC., Appellant.
    4

    Appellate Division of the Supreme Court of the State of New York, First Department.

    5
    Decided March 21, 2002.
    6

    Concur — Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.

    7

    260*260 Plaintiffs Julia Pizarro and Maricela Castro witnessed an elevator malfunction that resulted in the decapitation of nonparty James Chenault, who was not previously known to either plaintiff. Supreme Court dismissed the complaint as it pertained to plaintiff Pizarro on the ground that she was not in the elevator at the time of the incident. However, the court declined to dismiss the claim of plaintiff Castro, reasoning that, as one of the five passengers in the faulty elevator, she was within the zone of danger.

    8

    At her deposition, Ms. Castro testified that, after she boarded the elevator on the main floor, it began descending while a woman was still getting on. The elevator then reversed direction and, as it moved upwards with the doors still open, she saw that the man subsequently identified as James Chenault was standing in the door frame. As the top of the elevator hit the top of his head, plaintiff turned away. When she heard a woman scream, she looked down and saw Mr. Chenault's head next to her feet. After a rapid ascent, the elevator subsequently descended very quickly, slowing down only when it reached the third floor and eventually stopping on the first floor. Although physically unharmed, plaintiff Castro was treated for shock. The complaint alleges that she continues to suffer psychological symptoms as a result of her experience.

    9

    The horrific nature of this accident is self-evident. However, as defendant contended on the motion, the complaint should have been dismissed because plaintiff Castro was not closely related to the decedent (Bovsun v Sanperi, 61 NY2d 219).

    10

    A plaintiff may state a cause of action for mental trauma sustained as the result of negligence, even without physical impact (Battalla v State of New York, 10 NY2d 237, 242; see also, Tobin v Grossman, 24 NY2d 609, 613). However, where the recovery sought by an uninjured third party is predicated on witnessing injury sustained by another person, three criteria must be established: first, the defendant's conduct must be a substantial factor in causing serious injury or death to the third party; second, the plaintiff must be within the zone of danger; and, third, the injured person must be an immediate family member of the plaintiff (Bovsun v Sanperi, supra at 230-231; see also, Trombetta v Conkling, 82 NY2d 549 [niece not a member of the victim's immediate family]).

  • 4 Roman v. Carroll--"The Dismembered Poodle"

    Should people be allowed to recover for the emotional distress they feel when their pets are injured?

    1
    127 Ariz. 398 (1980)
    2
    621 P.2d 307
    3
    Jane ROMAN, Plaintiff/Appellant,
    v.
    Robert CARROLL and Grace Carroll, husband and wife, Defendants/Appellees.
    4
    No. 2 CA-CIV 3748.
    5

    Court of Appeals of Arizona, Division 2.

    6
    December 19, 1980.
    7

    Law Offices of O'Neill & Martin by J. Dan O'Neill, Tucson, for plaintiff/appellant.

    8

    Slutes, Browning, Zlaket & Sakrison, P.C., by Mark R. Riegel, Tucson, for defendants/appellees.

    9

    399*399 OPINION

    10

    RICHMOND, Judge.

    11

    The question on this appeal is whether a plaintiff can recover damages for emotional distress she suffered from watching defendants' St. Bernard dismember plaintiff's poodle while she was walking the dog near her home. The poodle died two days later. In her action for damages, plaintiff/appellant alleges that she suffered severe emotional shock from witnessing the incident and that, at the time, she considered herself in danger of attack by the St. Bernard. She appeals from a summary judgment denying her damages for emotional distress.[1]

    12

    Appellant contends that she is entitled to a trial on the question of damages for negligent infliction of emotional distress because her relationship with her pet poodle was a close one within the meaning of Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979). The supreme court in Keck held that under certain circumstances a person may recover damages for negligent infliction of emotional distress caused by witnessing injury to a third person. A dog, however, is personal property. A.R.S. § 1-215(25); State v. Hernandez, 121 Ariz. 544, 592 P.2d 378 (App. 1979). Damages are not recoverable for negligent infliction of emotional distress from witnessing injury to property. See, e.g., State v. Baltimore Transit Co., 197 Md. 528, 80 A.2d 13, 28 A.L.R.2d 1062 (App. 1951).

    13

    Affirmed.

    14

    HATHAWAY, C.J., and HOWARD, J., concur.

    16

    [1] The parties stipulated to a judgment of $1,000 "for any and all damages claimed ... for veterinarian expenses, burial expenses, value of dog and punitive damages."

  • 5 Gammon v. Osteopathic Hospital of Maine, Inc.--"The Severed Leg in the Bodybag"

    Should the plaintiff be able to recover for emotional distress, despite the lack of risk of physical harm nor the mishandling of a relative's corpse?

    1
    534 A.2d 1282 (1987)
    2
    Gerald C. GAMMON
    v.
    OSTEOPATHIC HOSPITAL OF MAINE, INC., et al.
    3

    Supreme Judicial Court of Maine.

    4
    Argued March 5, 1987.
    5
    Decided December 16, 1987.
    6

    Terrance D. Garmey (orally), Maureen E. Dea, William Kany, Smith & Elliott, Saco, for plaintiff.

    7

    Leland N. Chisholm (orally), R. Terrance Duddy, Kelly, Remmel & Zimmerman, Portland, for Neal-York Funeral Home, Inc.

    8

    James M. Bowie (orally), Hunt, Thompson & Bowie, Portland, for Osteopathic Hosp. of Maine, Inc.

    9

    Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, SCOLNIK and CLIFFORD, JJ.

    10

    ROBERTS, Justice.

    11

    Following a jury trial, the Superior Court, Cumberland County, entered a judgment against the plaintiff, Gerald C. Gammon, and in favor of the defendants, Osteopathic Hospital of Maine, Inc. and Neal-York Funeral Home, Inc. On appeal Gammon challenges the directed verdict granted on Count I of his complaint, which alleged negligent infliction of severe emotional distress.[1] Because the evidence introduced at trial would support a verdict in Gammon's favor on the negligence theory of Count I, we vacate the judgment.

    13 14

    Linwood Gammon, Gerald's father, died on November 7, 1982 at the Osteopathic Hospital in Portland. Gerald Gammon asked the Neal-York Funeral Home to make the funeral arrangements. Morrill York went to the hospital to pick up Linwood Gammon's body. Hospital personnel directed him to the hospital morgue where corpses are kept in a two-drawer cooler. York found the bottom drawer empty. The top drawer contained Linwood Gammon's body identified by a tag. That drawer also contained two plastic bags, one of which was identified by a tag as Gammon's personal effects. Because on prior occasions York had found personal effects in the cooler with corpses, he assumed that both bags contained Gammon's personal effects.

    15

    Both plastic bags were delivered to Gerald Gammon at the funeral home and taken by him to his father's home in Limington. The next morning Gammon searched the tagged bag looking for his father's shaver. He found only clothing. Inside the untagged bag, he found a second bag. When he opened the second bag, Gammon discovered a bloodied leg, severed below the knee and bluish in color. He yelled "Oh my God, they have taken my father's leg off." He ran into the kitchen where he leaned against the refrigerator for support, and said, "Guess what I found in the bathroom. I found my father's leg." In the words of Gammon's aunt, "He was as white as a ghost."

    16

    Gammon later found a label located on the outside of the inner bag that identified the leg as a pathology specimen that had been removed from someone other than his father. He carried the bag to the garage and called York who returned the bag to the hospital. Thereafter, Gammon began having nightmares for the first time in his life, his personality was affected and his relationship with his wife and children deteriorated. After several months Gammon's emotional state began to improve, although his wife testified that he still had occasional nightmares and Gammon testified that he still sees the leg in his mind two or three times a week. He did not seek medical or psychiatric evaluation or treatment and no medical evidence was offered at trial.

    17

    The trial court granted the defendants' motions for a directed verdict on Gammon's claim for negligent infliction of severe emotional distress. Gammon's claim in Count III of his complaint for damages resulting from intentional or reckless infliction of severe emotional distress was submitted to the jury upon special interrogatories. The jury concluded that Gammon had suffered "severe emotional distress"[2] but that the distress was not proximately caused by intentional or reckless conduct of either defendant. Accordingly, the court entered judgment in favor of the defendants.

    19
    II.
    20

    The issue is whether, in these circumstances, Gammon has established a claim, in tort, for negligent infliction of severe emotional distress. A person's psychic well-being is as much entitled to legal protection as is his physical well-being. We recognize as much and provide compensation when the emotional distress is intentionally or recklessly inflicted, when the emotional distress results from physical injury negligently inflicted, or when negligently inflicted emotional distress results in physical injury. In order to ensure that a claim for emotional distress without physical injury is not spurious, we have previously required a showing of physical impact, objective manifestation, underlying or accompanying tort, or special circumstances. In the case before us, we conclude that these more or less arbitrary requirements should not bar Gammon's claim for compensation for severe emotional distress.

    21

    1284*1284 In 1880 we held that "mental suffering alone, unattended by any injury to the person, caused by simple actionable negligence" was not compensable. Wyman v. Leavitt, 71 Me. 227 (1880). Again, in 1921 we held that "if no bodily injury is alleged or proved ... mental suffering ... [is] outside the principle of compensation." Herrick v. Evening Express Pub. Co., 120 Me. 138, 113 A. 16 (1921). Seventeen years ago we adopted a new rule allowing recovery where the plaintiff suffered substantial and objectively manifested mental and emotional suffering proximately caused by an act of negligence "even though there [was] no discernable trauma from external causes." Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970). We later found in Wallace a fortiori support for the adoption of the rule of liability stated in section 46 of the Restatement (Second) of Torts (1965) for intentionally or recklessly causing severe emotional distress. Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me.1979). To the extent that the language of the Wallace opinion rejected the "physical impact" requirement in addition to its rejection of the "bodily injury" requirement as an essential element, it was unnecessary to the holding.[3] Nevertheless, we adopted the Wallace dictum as support for our holding in favor of allowing a bystander to recover for emotional distress without showing physical impact. Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982). Moreover, that part of the Wallace decision requiring proof of "objective symptomatology" (nausea, for example) was explicitly overruled.[4] Id. at 437. We concluded that the requirement of physical manifestation of mental distress was both over-inclusive (permitting recovery for trivial distress if accompanied by physical symptoms), and underinclusive (denying recovery for serious distress if not accompanied by physical symptoms). Id. For bystander recovery for damages resulting from "serious mental distress," we were satisfied that "the state of modern medical science" plus the factors deemed relevant in determining foreseeability provided sufficient guarantee against fraudulent claims and against undue burden on defendants. Id. at 436-37.

    22

    Two years later, in the context of a defamation action, we reaffirmed the Culbert foreseeability test but concluded that the jury verdict for the defendant on the defamation action precluded recovery by the plaintiff for negligently inflicted emotional distress. Packard v. Cent. Me. Power Co., 477 A.2d 264 (Me.1984). Last year, in a case involving late delivery of a memorial stone, we affirmed the denial of recovery for emotional distress in the absence of either physical consequences or an "independent underlying tort." Rubin v. Matthews Int'l. Corp., 503 A.2d 694 (Me.1986) (citing Packard). Most recently, in an action for mental distress caused by negligent treatment by a psychotherapist, we vacated a summary judgment in favor of the defendants. Rowe v. Bennett, 514 A.2d 802, 804 (Me.1986). Three members of the Rowe court found it necessary to create an exception to the Rubin requirement of an "underlying tort." That exception was justified, the opinion states, because it is unlikely that "objective evidence of mental distress will be unavailable in a claim by a patient against his psychotherapist." Id. at 806.

    23

    No useful purpose would be served by more detailed analyses of our prior decisions or by consideration of whether the holdings of these cases follow a consistent trend. They demonstrate in a variety of ways the difficulty courts have had dealing 1285*1285 with psychic injury.[5] They also demonstrate the frailty of supposed lines of demarcation when they are subjected to judicial scrutiny in the context of varying fact patterns. Moreover, these cases disclose our awareness of the extensive criticism aimed at the artificial devices used by courts to protect against fraudulent claims and against undue burden on the conduct of defendants.

    24

    The analyses of commentators[6] and the developing trend in caselaw[7] encourage us to abandon these artificial devices in this and future tort actions and to rely upon the trial process for protection against fraudulent claims. In addition, the traditional tort principle of foreseeability relied upon in Wallace and Culbert provides adequate protection against unduly burdensome liability claims for emotional distress. Jurors or trial judges will be able to evaluate the impact of psychic trauma with no greater difficulty than pertains to assessment of damages for any intangible injury. We do not foresee any great extension of tort liability by our ruling today. We do not provide compensation for the hurt feelings of the supersensitive plaintiff —the eggshell psyche. A defendant is bound to foresee psychic harm only when such harm reasonably could be expected to befall the ordinarily sensitive person.[8]

    25

    We have previously recognized that courts in other jurisdictions have allowed recovery for mental distress alone for negligent mishandling of corpses. Rubin, 503 A.2d at 699 n. 5. In recognizing that Gammon has made out a claim in the instant case, we do not find it necessary to rely on an extension of this exception. Instead, we look to the rationale supporting the exception. Courts have concluded that the exceptional vulnerability of the family of recent decedents makes it highly probable that emotional distress will result from mishandling the body. See, e.g., Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438 (W.Va.1985). That high probability is said to provide sufficient trustworthiness to allay the court's fear of fraudulent claims. Prosser and Keaton on Law of Torts, § 362 (5th Ed.1984). This rationale, it seems, is but another way of determining that the defendant reasonably should have foreseen that mental distress would result from his negligence. By the same token, on the record before us, a jury could conclude that the hospital and the mortician reasonably should have foreseen that members of Linwood Gammon's family would be vulnerable to emotional shock at finding a severed leg in what was supposed to be the decedent's personal effects. Despite the defendants' argument to the 1286*1286 contrary, we hold that the evidence in this case would support a jury finding that either or both defendants failed to exercise reasonable care to prevent such an occurrence.

    26

    Although the analysis in the instant case may impact upon the rationale of our recent cases, we do not find it necessary to overrule those cases. We do not hold that any prior case was wrongly decided. Rather, we recognize that the elimination of some barriers to recovery for negligent infliction of severe emotional distress may compel further evaluation of other policy considerations. For example, the result in Packard is supported on the ground stated by the trial court: "[B]y allowing recovery... merely on the ground of negligence, the `qualified privilege' given to communications to law enforcement officials is diluted." Packard, 477 A.2d at 268.

    27

    On the facts and circumstances of the case before us, however, we find no sound basis to preclude potential compensation to Gammon. We hold, therefore, that the trial court erred in directing a verdict on Gammon's claim for negligent infliction of severe emotional distress.[9] Accordingly, we vacate the judgment in favor of the defendants on Count I.

    28

    The entry is: Judgment on Count I vacated.

    29

    Remanded for further proceedings consistent with the opinion herein.

    30

    All concurring.

    32

    [1] Gammon's brief states that the court also erred in directing a verdict for the defendants on Count II, but he presents no argument in support of that contentions. Gammon does not challenge the jury verdict against him on Count III that alleged intentional or reckless infliction of emotional distress.

    34

    [2] The court defined severe emotional distress as "such that no reasonable man could be expected to endure it."

    36

    [3] There was evidence of impact in Wallace although the impact clearly was insufficient of itself to cause physical, as opposed to psychic, injury.

    38

    [4] Our implicit rejection of section 313 of the Restatement (Second) of Torts (1965) that requires proof of "illness or bodily harm" as a result of negligently inflicted mental distress reflected the developing caselaw rejecting this requirement in the 17 years since the Restatement's adoption.

    40

    [5] When discussing this type of injury, the courts of other jurisdictions and the commentators have used as the adjective either "emotional, mental, nervous or psychic" together with the noun "distress, pain, injury, harm, trauma, disturbance or shock." These phrases have not become words of art although each, with varying degrees of accuracy, seems to refer to nontactile trauma resulting in injury to the psyche.

    42

    [6] See, e.g., Prosser and Keeton on Law of Torts, 54 (5th ed. 1984); Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L. Rev. 333 (1984); Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hast. L.J. 583 (1982); Zepkin, The Independent Tort of Negligently Inflicted Emotional Distress—Its Time Has Come, 10 Va.Bar J. 4 (1984).

    44

    [7] See, e.g., Molien v. Kaiser Foundation Hosp., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (Cal. 1980) (in bank) (negligent diagnosis of syphilis in plaintiff's wife); Rodrigues v. State, 472 P.2d 509 (Haw.1970) (negligently caused property damage inflicting mental distress); Leong v. Takasaki, 520 P.2d 758 (Haw.1974) (bystander recovery for negligently inflicted mental distress without resulting physical injury); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983) (en banc) (emotional distress from being trapped in an elevator); St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex.1987) (negligent disposal of stillborn infant's body); Gates v. Richardson, 719 P.2d 193 (Wyo.1986) (bystander recovery for negligent infliction of emotional distress); Contra Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982) (mental distress caused by exposure to DES in utero).

    46

    [8] We described serious mental distress in Culbert as being "where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the event." Rowe, 514 A.2d at 805 (quoting Culbert).

    48

    [9] By virtue of the pleadings and the jury finding in the case before us, our holding necessarily is limited to negligently inflicted severe emotional distress. We do not decide whether a defendant shall be liable for negligently inflicted emotional distress of any lesser degree.

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