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Emotional Harm
  • 1 Emotional Harm: Falzone v. Busch

    Charles Falzone was standing in a field adjacent to the roadway when he was struck and injured by Busch’s negligently driven automobile. Mabel Falzone, his wife, was seated in his lawfully parked automobile close to the place where her husband was struck and Busch’s negligently driven automobile veered across the highway and headed in her direction, coming so close to her as to put her in fear for her safety. As a direct result she became ill and required medical attention. Rejecting Ward, the court held that where negligence causes fright from a reasonable fear of immediate personal injury, the injured person may recover.

    1

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

    2

    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.

    3

    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.

    4

    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.

    5

    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).

    6

    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:

    7

    "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.

    8

    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):

    9

    "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.

    10

    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:

    11

    "* * * 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.

    12

    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:

    13

    "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; * * *"

    14

    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).

    15

    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).

    16

    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).

    17

    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:

    18

    "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).

    19

    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.

    20

    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:

    21

    "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).

    22

    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.

    23

    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).

    24

    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.

    25

    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.

    26

    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.

    27

    Reversed.

    28

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

    29

    For affirmance — None.


  • 2 Emotional Harm: Lourcey v. Estate of Scarlett

    Cindy Lourcey was working as a postal carrier for the United States Postal Service. While delivering mail by postal vehicle on Rome Pike in Lebanon, Tennessee, Lourcey encountered Charles Scarlett and his wife, Joanne Scarlett, who was nude from the waist up, in the middle of Rome Pike. When Lourcey stopped her vehicle to provide assistance, Charles Scarlett told her that his wife was having a seizure. As Lourcey used her cell phone to call emergency 911 to request help, Charles Scarlett pulled out a pistol and shot his wife in the head. He then turned and faced Lourcey, pointed the pistol at his head, pulled the trigger, and killed himself. The Lourceys allege that Charles Scarlett’s conduct created causes of action for intentional and negligent infliction of emotional distress.

    2

    Page 745

    5
    81 Cal.Rptr.2d 745

    8
    69 Cal.App.4th 652, 99 Cal. Daily Op. Serv. 806,

    11
    99 Daily Journal D.A.R. 939

    14
    James LAWSON et al., Plaintiffs and Appellants,
    v.
    MANAGEMENT ACTIVITIES, INC., et al., Defendants and Respondents.

    17
    No. G019872.

    20
    Court of Appeal, Fourth District, Division 3, California.

    23
    Jan. 27, 1999.
    25

    Page 746

    27

            [69 Cal.App.4th 654] Lisa R. Geraurd, Los Angeles, for Plaintiffs and Appellants.

    29

            Michaelis, Montanari & Johnson, Garry L. Montanari, Westlake Village, and Wesley S. Wenig, Woodland Hills, for Defendants and Respondents.

    32
    OPINION
    34

            SILLS, P.J.

    36

    Introduction and Facts

    38

            In December 1993, a group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them. They feared injury from the ensuing explosion.

    40

            The jet didn't crash into them. Rather, it crashed into nearby ground. Despite their fears, the employees were among the first to arrive at the scene of the crash, to offer whatever assistance they could, and to observe the aftermath.

    42

    Page 747

    44

            The employees, led by James Lawson, later sued Management Development Corporation and several related entities, the owners and operators of the jet, for the "serious, substantial and enduring mental anguish" occasioned by the crash. The trial court dismissed the case after it sustained a demurrer without leave to amend and Lawson and his coworkers brought this appeal. 1

    46

            If this court were to apply the principles articulated in Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894, Justice McDaniel's tour de force in the area of damages for emotional distress under a negligence theory (the reader should note we do not use the phrase "negligent infliction of emotional distress"), we might end this opinion right here with a summary affirmance.

    48

            To oversimplify the Bro opinion, emotional distress recovery in negligence falls into two categories, "direct victim" and "bystander" situations, depending on whether the plaintiff suffered emotional distress upon seeing someone else physically hurt--if so, then it is a "bystander" situation, if not, "direct victim." If the plaintiff claims direct victim status, Bro divines the [69 Cal.App.4th 655] requirement that there be both a preexisting consensual relationship between the parties (see e.g., Bro, supra, 22 Cal.App.4th at pp. 1416, 1427, 27 Cal.Rptr.2d 894) and the defendant's conduct reach a certain level of outrageousness (see e.g., id. at pp. 1434, 1438-1439, 1441, 27 Cal.Rptr.2d 894). In the case before us, there is no doubt that there was no preexisting relationship between the parties, much less a consensual one. Nothing comes close to outrageousness. Quite the opposite really: The reasonable inference from the complaint is that the captain of the jet courageously managed to avoid crashing into a populated area.

    50

            The plaintiffs, however, argue that their case cannot be shoehorned into the categories of "direct victim" or "bystander" because they feared for their own safety in those few horrific moments before the crash. And they point to a body of California case law, most recently relied on by the Ninth Circuit in another airplane crash case, In re Air Crash Disaster Near Cerritos, Cal. (9th Cir.1992) 973 F.2d 1490, to propound the rule that individuals who simply fear for their own safety because of a defendant's negligence may always recover for the ensuing emotional distress. 2 We also note that the recent decision in Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 takes issue with both the preexisting relationship and outrageous conduct requirements articulated in Bro for "direct victim" cases based on fear for one's own safety. (See Wooden, supra, 61 Cal.App.4th at pp. 1038-1042, 71 Cal.Rptr.2d 891.)

    52

            We will not attempt, in this opinion, to articulate any great general rules for emotional distress cases--the Supreme Court will have its hands full when, if ever, it attempts to articulate one grand unified theory in the area. 3 We will only decide the case before us, though that requires that we respectfully decline to follow the Wooden decision to the degree that its facts--a car crash in which a literal bystander feared for her own safety--might be extrapolated to the airplane crash before us. Applying the standard seven-factor analysis by which our high court has traditionally ascertained duty in tort law, we hold that the duty of care imposed on airplane operators does not extend to the emotional distress suffered by physically untouched spectators of plane crashes, even spectators who, for a brief moment, reasonably fear for their own safety.

    54

    [69 Cal.App.4th 656]

    56

    Back to the Basics

    58

            One observation is necessary at the beginning of any case involving an emotional distress

    60

    Page 748

    62

            For example, while the Wooden case was careful to recognize that "NIED is simply a species of negligence" (Wooden, supra, 61 Cal.App.4th at p. 1046, 71 Cal.Rptr.2d 891), the opinion also casually referred to the "NIED theory" (see id. at p. 1041, 71 Cal.Rptr.2d 891) as if the "NIED theory" were something already firmly established. At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress. (E.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795 ["there is no independent tort of negligent infliction of emotional distress"]; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197 ["We have repeatedly recognized '[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.' "]; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884, 2 Cal.Rptr.2d 79, 820 P.2d 181 ["Negligent infliction of emotional distress is not an independent tort.... "]; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278 [substantially same as Burgess ].) Indeed, civilized life would not be possible if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then "who can stand?" No one, saint or sinner, can go through life without "negligently" inflicting emotional distress on others. (Cf. Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 495, 69 Cal.Rptr.2d 244 [making point that heartache and pain are inherent in certain human relationships].) 4

    64

            Instead of lumping emotional distress cases under one heading and then, like Einstein, searching for a grand consistent theory to reconcile the cases, [69 Cal.App.4th 657] it is more in keeping with the fact that NIED is not a separate doctrine to ask: What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence? It is true that the question, however phrased and whatever its permutations, requires more words than just "NIED," and therefore is more cumbersome to write. But at least the asking of it reminds us what we are dealing with. When the question is asked, a court is not likely to stray too far from the fundamentals of basic negligence law, that is, the "traditional elements of duty, breach of duty, causation, and damages." (See Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197, quoting Marlene F., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.)

    66

            The question before us, then, is not a mechanistic inquiry as to whether fear-for-own-safety cases fall under the rubric of "direct victim," "bystander" or perhaps a third legal category for "zone of danger" (as plaintiffs, understandably afraid that we might follow Bro, urge upon us). It is not a matter of simply pigeonholing our facts into some neat legal category. Rather, the fundamental question is whether the duty of care necessarily attendant upon operating an airplane extends as far as those who fear for their own safety in a crash, even though they remain literally untouched. 5

    68

    Page 749

    70

            On that score the answer is no. When this case is looked at in light of the seven factors traditionally used by our Supreme Court to determine the existence of a duty, the balance tips decidedly against liability. The traditional factors are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (See Burgess, supra, 2 Cal.4th at pp. 1079-1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Christensen, supra, 54 Cal.3d at pp. 885-886, 2 Cal.Rptr.2d 79, 820 P.2d 181; Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16.)

    72

    The Seven Factors

    74

            As Bro pointed out, foreseeability is of limited usefulness in delineating duty in emotional distress cases. (See Bro, supra, 22 [69 Cal.App.4th 658] Cal.App.4th at p. 1413, 27 Cal.Rptr.2d 894; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d 814 [noting that foreseeability alone is not " 'useful' " in emotional distress cases because it provides no limits on liability for " 'nonphysical harm' "].) Foreseeability is independent of any preexisting relationship which, as the Bro court (rightly) points out, provides a natural limitation on liability. It takes no imagination to realize that people on the ground who are close to an airplane crash are going to be very scared. By the same token, while it is foreseeable that the fright will be intense, it is also foreseeable that the actual fright itself will be short lived. What is not foreseeable is the severity of people's psychological reactions to the crash. Emotional distress is a murky cauldron of actuarial imprecision, inherently limitless. It is also an area of remarkable individual idiosyncracity, with great extremes at either end. The Lord High Executioner in the Mikado was ready to commit suicide if he was rejected by the elderly Katisha 6; Private Ryan, the fictional embodiment of a generation of World War II veterans, stoically endured the death and dismemberment of close comrades who gave their lives to rescue him, and then went on to live a productive life. 7 At least in the context of the foreseeability factor in emotional distress cases like this one, tort law cannot countenance the doctrine of the "eggshell psyche."

    76

            On balance, foreseeability itself does not count for much, one way or the other, on the question of liability for emotional distress to otherwise unhurt bystanders to airplane crashes.

    78

            By contrast, the certainty of injury is a factor that squarely weighs against liability. Again, the key is the loosey-goosey nature of a pure emotional distress claim. One can always worry oneself sick, almost as a matter of will. The reality of psychological injury remains--and perhaps, despite CAT scans, PET scans, MRIs and who knows what the future holds, always will remain--a subject of intense philosophical debate. There is always the suspicion that extending the tort duty gives plaintiffs an incentive to malinger or worry themselves into a state of depression. Suffice to say for purposes of this case that certainty of injury is something that we do not have. Yes, the question of the reality of injury can go to a jury, but that is not [69 Cal.App.4th 659] the point. Psychological symptoms are much more susceptible to being faked than more palpable effects. 8

    80

    Page 750

    82

            The third factor is the closeness of the connection between the defendant's conduct and the injury suffered. Here, the factor certainly does tilt in the direction of liability. There is no reasonable doubt that being near a plane crash and fearing for one's own safety during those few terrible moments before the crash is going to be traumatic. The factor is ameliorated somewhat, however, by the differences in psychological constitutions among people. Some people will act heroically in situations of disaster--indeed, it appears that the plaintiffs, regardless of how traumatized they were from the few moments of fear before the crash, summoned up great courage in going to the crash after they realized they were out of danger. One cannot predict, for example, how many people in the vicinity of a plane crash are already predisposed to depression, or--because of their own unique experiences--are inclined to fall to pieces in any disaster, act heroically, or, as the complaint suggests here, act heroically and then go into depression. There will always be some trauma, of course. How much, again, is unpredictable.

    84

            The fourth factor is the moral blame attached to the defendant's conduct. This factor weighs heavily against liability. Plane crashes, much more so than car crashes, tend to be fatal. There is far more reckless driving than reckless flying. Plane crashes are usually the result of some tragic error in the maintenance or operation of the plane--at worst, negligence in light of a very high standard of required performance--rather than any kind of moral indifference to the possibility of injury. Nothing is to be gained by extending the liability attendant upon air crashes to the emotional distress of ground spectators.

    86

            Next there is the policy of preventing future harm, to which the same considerations apply as moral blame. The high likelihood of death and the inevitable liability which will come to those physically affected is more than sufficient to deter "future harm." Beyond that, there is regulatory apparatus devoted to air safety which, in quality and intensity of care, is already [69 Cal.App.4th 660] disproportionate to the safety apparatus which regulates automotive traffic. 9 Extending liability for plane crashes to emotionally distressed bystanders--bystanders in the literal sense--accomplishes virtually nothing in the way of marginally increased deterrence.

    88

            The final two factors--the extent of the burden to the defendant and the general macroeconomic consequence (if we may be so bold as to so characterize the final factor) to the community--also weigh against liability. The actuarial unpredictability of emotional distress damages could add significantly to the cost of insuring air transportation. A federal district court summed up the problem nicely when it declared: "This Court is not prepared to extend [the airline's] direct duty to all the non-passengers it's [sic ] planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to 'virtually limitless ... tort liability.' " (Air Crash Disaster at Cove Neck Long Island, N.Y. (E.D.N.Y.1995) 885 F.Supp. 434, 440.)

    90

            Air crashes are inevitably going to be very expensive disasters. They usually make the newspapers in a way that car crashes don't. Most air crashes are going to involve some collateral damage to surrounding property and pose a serious risk to bystanders of tangible harm from flying debris. The demands on the insurance pool for recovery are

    92

    Page 751

    94

            In short, the factors which determine duty weigh, on balance, against liability for emotional distress damages to otherwise unhurt bystanders. What factors tilt in the direction of liability don't tilt very far; the factors against weigh decidedly against.

    96

    Prior Cases and the "Zone of Danger"

    98

            In In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d 1490, a couple at home heard two loud noises and suffered severe shock and fright [69 Cal.App.4th 661] when two airplanes collided in mid-air and crashed one hundred yards away. The Ninth Circuit concluded that California law would permit the couple to recover for their emotional distress damages, albeit with one judge dissenting because the couple did not actually witness the crash. 10 (See id. at p. 1491, 1491 fns. 1 & 2.) In doing so, the Ninth Circuit relied on a series of cases which can appear, at least on first blush, to support the broad proposition that California tort law permits recovery for emotional distress whenever one reasonably fears for one's own safety. And indeed, the dissenting judge nicely encapsulated what her colleagues were saying when she wrote:

    100

            "As Judge Canby explains, for years the California courts have recognized recovery for emotional distress on account of reasonable fear for one's own safety. See Lindley v. Knowlton 179 Cal. 298, 176 P. 440 (1918); Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532 (1931), partially overruled on other grounds, San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951); Cook v. Maier 33 Cal.App.2d 581, 92 P.2d 434 (1939); see also Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 300-04, 29 Cal.Rptr. 33, 379 P.2d 513 (1963) (acknowledging Lindley and Webb but declining to extend recovery to fear for safety of others), partially overruled by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Vanoni v. Western Airlines, 247 Cal.App.2d 793, 56 Cal.Rptr. 115 (1967). These cases have never been overruled, and I agree with the majority that they remain good law." (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at p. 1494 (dis. opn. of Rymer, J.).)

    102

            With due respect to the Ninth Circuit, we must disagree that California tort case law may be read for the broad proposition that emotional distress damages are available whenever one reasonably fears for one's own safety because of the negligence of another, regardless of actual circumstances or context. The proposition is simply too broad. A moment's reflection should reveal that there are too many situations in modern life when one can reasonably be scared for one's own safety. Permitting a lawsuit for just that fright would clog the courts and make transpiration and commerce impossible. Duty is a question of law which depends on the " 'foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability.' " (Marlene F., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278, quoting Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189.) The law can hardly permit a major tort suit for unpredictable emotional [69 Cal.App.4th 662] distress damages for every near-miss and otherwise uneventful unsafe lane change. 11

    104

    Page 752

    106

            Scratch a great legal problem and you are likely to find a great philosophical problem. The question of emotional distress damages implicates nothing less than the mind-body problem in philosophy. 12 We are not about to try to solve that great quandary here, 13 but there is no way one can read the cases in the emotional distress area without recognizing that the mind-body problem was the core preoccupation of the fear-for-one's-own-safety cases relied on by the Ninth Circuit in Air Crash Disaster Near Cerritos. Those cases were not classic "duty cases," in the tradition of Burgess, Christensen and Biakanja. Rather, the focus of those cases was merely the rejection of a per se rule against physical damages arising out of emotional distress given the particular facts at hand.

    108

            [69 Cal.App.4th 663] The fountainhead case in the area is the late 19th Century decision, Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 44 P. 320. Indeed, plaintiffs rely on Sloane here. Sloane involved a claim for mental suffering on the part of a passenger on a train who tried to travel from North Pomona to San Diego via San Bernardino. On the Pomona-San Bernardino leg of the trip a conductor took her ticket, but gave her no transfer ticket or receipt. She had to change trains in San Bernardino, but she was forced to leave in East Riverside when the conductor on that train found she had no ticket. She walked to her sister-in-law's in Colton from East Riverside, and later sued the railroad. After a relatively large award against the railroad for its "wrongful acts committed ... in violation of its contract" (so large, in fact, that the award itself was reversed by the Supreme Court, see id. at pp. 687-688, 44 P. 320), the railroad appealed the judgment on the ground that "mere mental anxiety, unaccompanied with bodily injury or apprehended peril, does not afford a right of action." (Id. at pp. 677, 679, 44 P. 320.) The high court's answer to the contention was: The plaintiff wasn't suing for mere mental anxiety, but physical harm as well. "The real question presented by the objections and exception of the appellant is, whether the subsequent nervous disturbance of the plaintiff was a suffering of the body or of the mind. The interdependence of the mind and body is in many respects so close that it is impossible to distinguish their respective influence upon each other. It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism." (Id. at p. 680, 44 P. 320, emphasis added.)

    110

            The passage from Sloane, if read carefully, suggests that the Supreme Court casually accepted an almost "Cartesian" view that

    112

    Page 753

    114

            The other cases relied on in Air Crash Disaster Near Cerritos simply repeated the Sloane rationale. That is, these courts assumed that the trauma leading to the emotional distress caused some unspecified "nerve damage" or "shock to the nerves" which took the case out of the emotional and into the physical.

    116

            In Lindley v. Knowlton (1918) 179 Cal. 298, 176 P. 440, a 165 pound chimpanzee attacked the plaintiff's children. The plaintiff had to fight the [69 Cal.App.4th 664] chimpanzee off. (See id. at p. 299, 176 P. 440.) The defendant argued the injuries were solely mental (ibid.), which the court, quoting Sloane, rejected, reasoning that the " 'nerves and nerve centers of the body' " were " 'part of the physical system.' " (Lindley, supra, 179 Cal. at pp. 300-301, 176 P. 440, quoting Sloane, supra, 111 Cal. at p. 681, 44 P. 320.)

    118

            Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 4 P.2d 532 gave the same cursory treatment to the problem. There a truck collided with a street car, then smashed into the front of a building. A woman working on the mezzanine floor of the building experienced "an immediate nervous collapse," which then led to "continued extreme nervousness, headaches, sleeplessness, [and] loss of weight." (Id. at p. 184, 4 P.2d 532.) Most of the opinion centered on a physician who had examined the plaintiff but whom the defendant sought to have testify. In a short paragraph near the beginning (and in several paragraphs devoted to showing harmless error after the discussion involving the physician) the court simply assumed that the plaintiff's "physical condition" had been implicated (see id. at p. 184, 4 P.2d 532) because the "injury complained of was to the nervous system of respondent." (Id. at p. 187, 4 P.2d 532.)

    120

            Cook v. Maier (1939) 33 Cal.App.2d 581, 92 P.2d 434 followed the same suit. A car crashed into another, ran up onto a vacant lot, collided with a trash burner, then ran into a rock and board fence and the corner of plaintiff's house, causing debris to be thrown in the direction and " 'about the person' " of the plaintiff, who was on her way to the trash burner. (Id. at p. 582, 92 P.2d 434.) The court framed the question as whether "damages may be permitted for physical injuries as the result of fright and nervous shock, without bodily contact." (Id. at p. 584, 92 P.2d 434.) Against a premise that "[f]right alone is not an injury," the court juxtaposed the idea that there was "[s]omething more than mere fright" alleged. (Id. at p. 583, 92 P.2d 434, emphasis added.) And again, relying on Sloane, that "something more" was damage to the nervous system.

    122

            Ditto Vanoni v. Western Airlines (1967) 247 Cal.App.2d 793, 56 Cal.Rptr. 115. There a commercial airliner was being flown in such a manner (the opinion doesn't say exactly how) as to cause its passengers to fear it was going to crash. (Id. at p. 794, 56 Cal.Rptr. 115.) The court operated from the premise that "there can be no recovery for emotional distress or mental suffering unaccompanied by physical harm arising from acts which are solely negligent in nature" (id. at p. 795, 56 Cal.Rptr. 115), then set about--again via a quotation from Sloane (see id. at p. 796, 44 P. 320)--to decide the case on the ground that " 'shock' " created by the fear really was a "physical injury" as distinct from an emotional or mental one. (See id. at p. 797, 44 P. 320.)

    124

            [69 Cal.App.4th 665] Thus, when our Supreme Court had occasion, in Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, to describe Webb and Lindley, it said that they represented "physical injury as a result of the emotional trauma." (Id. at p. 651, 257 Cal.Rptr. 865, 771 P.2d 814, emphasis added.) The court might as well have said the same thing about Sloane, Cook and Vanoni.

    126

            If the rationale of the Sloane-Lindley-Webb-Cook-Vanoni cases seems strained, it is because it is, and the time has come to

    128

    Page 754

    13014132

            The point may be illustrated by reference to what one might think is the ordinarily prosaic world of insurance coverage law. For years, one of the great "recurring issues" in liability insurance coverage was whether the words "bodily injury" in a commercial general liability (CGL) insurance policy obligated an insurer to cover claims arising out of economic or business torts where the bodily injury claim was based on emotional distress. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 10, 44 Cal.Rptr.2d 370, 900 P.2d 619.) It is now settled that the words do not so obligate. Thus a company founder who was upset that he was forced out of the company he built (Waller, supra, 11 Cal.4th at p. 30, 44 Cal.Rptr.2d 370, 900 P.2d 619); investors, including many senior citizens, who lost their life saving in investment scams (Keating v. National Union Fire Ins. (9th Cir.1993) 995 F.2d 154, 156; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 13 Cal.Rptr.2d 318); and an employee who was left without health insurance when she got into an auto accident (Aim Insurance Co. v. Culcasi (1991) 229 [69 Cal.App.4th 666] Cal.App.3d 209, 280 Cal.Rptr. 766) were all held not to have stated claims for "bodily injury."

    134

            Yet can it be denied that people who have lost their economic hopes and security, or who are left in the lurch without health insurance and who are then injured in an accident are going to experience some "physical" manifestations of their emotional distress? Sleepless nights, heart palpitations, a horrible feeling in the pit of one's stomach--these are "bodily" phenomena if one were to take the words "bodily injury" with a dogged literality. Certainly one must experience "nervous shock" upon hearing that one's life savings have been sunk into a worthless investment. The point is, as the Molien decision alluded to, the "attempted distinction between physical and psychological injury" is artificial; one cannot extrapolate the "nervous shock" rationale into infinity or there will be no limits on liability. (See Molien, supra, 27 Cal.3d at pp. 929-930, 167 Cal.Rptr. 831, 616 P.2d 813.)

    136

            In short, there is no shortcut to analyzing the actual duty and the gravamen of the claim in each case. There are cases where "shock" is clearly not compensable and cases where maybe it should be. Teenagers have been known to get heart palpitations when their boyfriends or girlfriends leave them. On the other hand, pregnant women have been known to suffer miscarriages when they witnessed their spouses injured in a car crash (e.g., Reed v. Moore (1957) 156 Cal.App.2d 43, 319 P.2d 80.) The law obviously must differentiate between the two. 15

    138

    Page 755

    140

            Cases are not authority for propositions which they did not decide. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372, 20 Cal.Rptr.2d 330, 853 P.2d 496.) While the Sloane-Lindley-Webb-Cook-Vanoni line of cases equated emotional distress with "nervous shock" and nervous shock with the sort of palpable physical injuries that no one would question were recoverable, none of them ever considered the crucial question we have before us: The duty of an airplane operator vis-a-vis otherwise untouched bystanders for emotional [69 Cal.App.4th 667] distress, regardless of whether that emotional distress can be artificially characterized as "nervous shock." 16 Indeed, neither did the Ninth Circuit in Air Crash Disaster Near Cerritos. Rather, the Ninth Circuit simply assumed that because California courts had allowed, in Judge Rymer's words, recoveries "for emotional distress on account of reasonable fear for one's own safety," plaintiffs could recover. There was no consideration of the scope of duty of an airplane operator. 17

    142

            Ironically, the recent decision of Wooden v. Raveling, supra, 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 follows much the same pattern. The facts in Wooden are reminiscent of Webb, i.e., a car crash that comes onto the plaintiff's property and placed the plaintiff in fear of personal injury. (See Wooden, supra, 61 Cal.App.4th at p. 1036, 71 Cal.Rptr.2d 891.) Just as Sloane, Webb and Lindley were content to rebut the idea that the plaintiff was merely seeking emotional distress, Wooden rested its decision on rebutting the requirements articulated in Bro. The Wooden decision is essentially devoted to the idea that the requirements which the Bro court articulated for so-called "direct victim" liability for emotional distress damages are inconsistent with Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795. We will not now try to figure out which of the two cases represents the better view, which case is more consistent with Potter, or whether the two cases might be reconciled. We do not rest our decision on the Bro requirements.

    144

            It is enough, rather, simply to note two aspects of the Wooden decision which distinguish it from the case at hand. One, there is a difference between car crashes and airplane crashes as they relate to bystanders. Automobile drivers necessarily must be highly aware of the surrounding area and nearby property through which they drive. Freeways pose different risks than residential streets. Children might dart out into a narrow alley; one must drive slowly to avoid them. No such necessity attaches on a wide stretch of open highway in the desert.

    146

            The risk to bystanders is different in air travel. Most of the time, after all, when a plane is flying, the safety of bystanders on the ground is irrelevant [69 Cal.App.4th 668] from the point of view of the operators and owners of the plane. It is only relevant when a crash is otherwise inevitable.

    148

            Two, Wooden did not analyze the bystander's fear for her own safety in context of the seven factors which our high court has traditionally

    150

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    152

            In sum, case law does not require imposition of a duty on operators of airlines to avoid the emotional trauma inherent in any crash to otherwise unhurt bystanders. We write on a clean slate.

    154

    Disposition

    156

            The judgment is affirmed.

    158

            BEDSWORTH, J., concurs.

    160

            SONENSHINE, J., Dissenting:

    163
    STANDARD OF REVIEW
    165

            This case comes to us after the trial court sustained the defendants' demurrers due to the plaintiffs' failure to state a cause of action. We therefore accept the allegations of the pleadings as true. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1223, 44 Cal.Rptr.2d 197.)

    167

    ALLEGATIONS CONTAINED WITHIN THE PLEADING

    169

            The plaintiffs' first amended complaint alleges: "The events giving rise to this cause of action occurred ... when a WESTWIND JET crashed while approaching for landing.... [p] ... Plaintiffs ... were at the time ... employed by ... a car dealership .... [p] ... and ... present [there when they] ... [p] ... observed the ... JET begin to descend, falling out of the sky. The plaintiffs watched the WESTWIND JET crash into the ground. Prior to the ... crash[ ], the plaintiffs were fearful ... the ... JET, or parts of it, would land on them and cause them serious injury. [p] ... Plaintiffs watched the ... JET explode and, in fact, felt the force and heat of the explosion, the force of which caused them to be thrown forward as they ran from the scene of the crash. The plaintiffs also feared that they might be further harmed by the force and/or heat of the explosion as well as debris flying from the explosion site." The complaint further alleges, "As a proximate result ..., plaintiffs suffered serious, substantial and enduring mental anguish and emotional distress which injured their health, strength and [69 Cal.App.4th 669] activity, sustaining injury to their body and shock and injury to their psyche and person, all of which said injuries have caused and continue to cause plaintiffs great mental and physical pain and suffering. [p] ... As a further proximate result of the negligence and carelessness of defendants, and each of them, plaintiff has incurred and will continue to incur, medical expense and costs of drugs and supplies.... [p] ... At the time of said injury, plaintiffs were employable and as a proximate result of said conduct of the defendant(s), and each of them, and by reason of the injuries suffered by plaintiffs, they were prevented from being employed, thereby losing earnings. Plaintiffs are informed and believe, and thereon allege, that they will continue to be prevented from attending to their occupations for a period in the future, and will thereby lose future earnings."

    171

    THE ALLEGATIONS STATE A CAUSE OF ACTION

    173

            The majority concludes the plaintiffs failed to state a cause of action because California does not recognize emotional distress damages for airplane crash spectators who suffer no physical harm. 1 My colleagues fail to appreciate the controlling law.

    175

            Over 100 years ago, our Supreme Court recognized, "A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril." (BAJI No. 12.81, italics added; see Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 682-683, 44 P. 320.)

    177

    Page 757

    179

            Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 4 P.2d 532 is instructive. There, our Supreme Court held a plaintiff could recover emotional distress damages after witnessing a truck crash into [69 Cal.App.4th 670] the building in which she was standing. The court noted the truck did not hit the plaintiff but she nevertheless was injured because she reasonably feared for her own safety. (See also Cook v. Maier (1939) 33 Cal.App.2d 581, 92 P.2d 434.)

    181

            The Supreme Court has not addressed the precise issue we consider--may an airplane crash witness recover for emotional distress damages relating solely to fear for personal safety? However, the Ninth Circuit in In re Air Crash Disaster Near Cerritos, Cal. (1992) 973 F.2d 1490 went one step further. There, the plaintiffs alleged they "were inside the bedroom of their home when they heard two sounds like sonic booms...." (Id. at p. 1494, italics added (dis. opn. of Rymer, C.J.).) They maintained they suffered severe and lasting emotional distress, fright and shock as a result of fear for their own safety. The district court dismissed the complaint, finding it failed to state a cause of action under California law. Relying on Webb and Cook, the Ninth Circuit reversed, holding California law "quite clearly [suggests plaintiffs] ... have stated a valid claim." (Id. at p. 1491.)

    183

            Cerritos is noteworthy for two reasons. First, of course, the majority held the plaintiffs could recover emotional distress damages after merely hearing a crash. Second, even the dissent acknowledged California law would allow recovery if the plaintiffs had seen the crash. (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at pp. 1494-1495.) The dissenting judge parted company with her colleagues only because, as she explained, the cases upon which the majority relied do not extend to plaintiffs who "were unaware of the injury-causing event that threatened their safety. [p] ... [p] ... [P]laintiffs who may recover on account of fear for their own safety will have appreciated why they are in danger." (Id. at p. 1496.)

    186
    THE MAJORITY OPINION
    188

            The Supreme Court says a car crash spectator can recover emotional distress damages. The Ninth Circuit says plaintiffs can recover if they are emotionally distressed after hearing a plane crash.

    190

            Why do my colleagues conclude these plaintiffs cannot recover? The majority sees a difference between car crash and airplane disaster witnesses. They say those who operate a car must be more "aware of the surrounding area and nearby property" because "[t]he risk to bystanders is different...." (Maj. opn., ante, p. 755.) Moreover, they say the standard is different because while results of airplane crashes are worse than car crashes, airplane operators should be held to a lower standard of care [69 Cal.App.4th 671] because pilot's negligence is "at worst, negligence in light of a very high standard of required performance--rather than any kind of moral indifference to the possibility of injury." (Maj. opn., ante, p. 750.) I fail to appreciate their distinction.

    192

            Simply stated my brethren are unimpressed with California Supreme Court authority, suggesting the high court should rethink its position and recognize its rationale is "strained" because it "assume[s] that the trauma leading to the emotional distress caused some unspecified 'nerve damage' or 'shock to the nerves' which took the case out of the emotional and into the physical." (Maj. opn., ante, pp. 752-753.) And, they find the Ninth Circuit just plain wrong. "With due respect to the Ninth Circuit, we must disagree ... California tort case law [does not permit] emotional distress damages ... whenever one reasonably fears for one's own safety...." (Id. at p. 751, original italics.)

    194

    Page 758

    196

            When cleansed of its fictional and historical rhetoric, the majority opinion affirms the trial court's sustaining of the demurrer because the justices reject what they label the "loosey-goosey" concept of emotional distress. (Maj. opn., ante, p. 749). Actually, my brethren are just unimpressed with "weak" people. As they say, "[T]ort law cannot countenance [an] ... 'eggshell psyche.' " 2 (Ibid.) If they had their way, we would all be certified war heroes. We certainly would not reward those who succumb to fear as a result of someone else's negligence.

    198

            My colleagues miss the point. Their feelings about emotional distress damages are irrelevant. The Supreme Court sets the standard we are to follow. I would reverse the granting of the demurrer and permit the trier of fact to decide if the defendants were negligent and, if so, whether the plaintiffs were damaged as a result.

    200

    ---------------

    202 203

    1 The defendants' motion to strike the reply brief as containing facts not in record is hereby denied as moot. Our facts are taken from the complaint, not the reply brief.

    205

    2 The Air Crash Disaster court categorized the case as a "direct victim" one. (See Air Crash Disaster, supra, 973 F.2d at p. 1494.) There is thus no way that it can be reconciled with Bro. Fortunately for us, and as we explain below, we need not attempt to reconcile the two cases. We do not rest our result on simply assigning the plaintiffs' claim to the "direct victim" category.

    207

    3 Perhaps--but only perhaps--the very attempt to articulate one set of consistent common law general rules in the area is a grail which will never be found. Time will tell.

    209

    4 Notwithstanding Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813. Molien has become the Marie Celeste of emotional distress law: It is an empty vessel, but not yet sunk. While not overruled, its discussion of duty has been limited to its own facts. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

    211

    5 While plaintiffs may have felt some heat, wind and vibration in the few moments before the crash, it would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash.

    213

    6 The story is in the Titwillow song near the end of the operetta.

    215

    7 Cf. Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, 1989 Jun. Army L. 17, 17 (noting that "most people" do not develop post-traumatic stress disorder after extremely traumatic events).

    217

    8 For example, see People v. Lockett (Sup.1983) 121 Misc.2d 549, 468 N.Y.S.2d 802, in which the court accepted a plea bargain in a criminal case based on the defendant not being responsible because he was suffering from post-traumatic stress disorder (PTSD) induced by his service in Vietnam while he was in the Air Force. When his Air Force file was examined it turned out that he had never been in Vietnam. (See id. at pp. 803-804.) See also Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, 1989 Jun. Army L. 17, 19 ("The ease with which a savvy defendant can fake PTSD symptoms has been recognized by medical researchers, and there are documented instances in which a defendant's plan to fake PTSD to avoid conviction was frustrated only by his own indiscretion.").

    219

    9 See Shea, Solving America's General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform (1995) 80 Cornell L.Rev. 747, 749 ("General aviation is one of the most intensely regulated industries in the United States. Since its enactment of the Federal Aviation Act of 1958, Congress has regulated nearly every aspect of the manufacture and operation of general aviation aircraft for the purpose of ensuring 'the highest degree of safety.' "). The "crisis" in the title refers to the strains on American aircraft manufacturers created by conflicts between state tort law and federal regulations.

    221

    10 See id. at p. 1496 (dis. opn. of Rymer, J.) (making the point that no California case had "gone so far" as to allow emotional distress recovery "when the causal link between the event and the threatened injury is not contemporaneously comprehended").

    223

    11 Breathes there a soul who has not witnessed an accident or two over the past few years? Or at least had a driver come speeding up from behind and momentarily worried that a crash was imminent? The bottom line of our dissenting colleague's analysis is that all witnesses to an accident who momentarily fear for their safety but who otherwise escape--indeed, those who fear for their safety even when there is no accident but merely a close call--may sue the wrongdoer for money as compensation for emotional distress. Wow! If this were the law, insurance premiums would skyrocket and the courts would groan from the sheer weight of litigation. The ultimate lawyers' paradise would have arrived: everyone would be suing everyone.

    225

    12 This is hardly esoteric stuff. The law reviews are full of it. Plug in "mind" "body" "Plato" and "dualism" in just the same sentence into a law review data base and you will find no less than 74 documents. (E.g., Barresi, Advocacy, Frame, and the Intergenerational Imperative: A Reply to Professor Weiss on "Beyond Fairness to Future Generations" (1998) 11 Tul. Envtl. L.J. 425, 428 (reference to "Cartesian dualism, the tendency inherent in Western thought to erect a philosophical barrier between mind and body, between matter and spirit, and between the physical world and the intellectual one"); Miller, DNA Blueprints, Personhood, and Genetic Privacy (1998) 8 Health Matrix: J. of Law-Medicine 179, 190-191 (contrasting views of Aristotle, Descartes and Hume on the self); Sells, Saving Icarus (1998) 23 Feb. Mont. Law. 1, 25 (reference to "the tired dualism of matter and spirit"); Smith, Machine Intelligence and Legal Reasoning (1998) 73 Chi.-Kent L.Rev. 277, 279 ("Descartes' error was in concluding that intelligence can exist independently of the human body"); Handsley, Mental Injury Occasioned by Harm to Another: A Feminist Critique (1996) 14 Law & Ineq. 391, 487 fn. 333 ("Liberal philosophy also rested on the 'metaphysical dualism' of the mind-body split.").

    227

    13 Justice Puglia opined in Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8, 4 Cal.Rptr.2d 87 that the "disparate" body of cases dealing with emotional distress damages is not really amenable to a " 'tight, coherent, conceptual scheme.' " The difficulty of the philosophical problem provides a clue as to why it has been so difficult for the courts to propound a unified legal theory when it comes to emotional distress--why, for example, some of the opinions seem to labor (e.g., "Justice Spencer agonized as she worked through an exhaustive discussion of the authorities" (Bro, supra, 22 Cal.App.4th at p. 1419, 27 Cal.Rptr.2d 894, referring to Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 276 Cal.Rptr. 470)) in the area. When the core issue is one over which some of the finest minds in human intellectual history have disagreed (e.g., Descartes and Hume), jurists are not necessarily going to have an easy time of it either.

    229

    14 For example, in the case before us, an employee sitting in an isolated and soundproof conference room might have been wholly oblivious to the impending crash. For those who became aware of the impending crash, the shock value depended on the brain to interpret certain stimuli as possible impending death.

    231

    15 Which is not to say that even in the latter situation the courts have had an easy time of being consistent. Reed actually held that the woman could not recover because the negligent act was not "directed at" her, but at her husband, which is how the Court of Appeal distinguished Sloane. (Reed, supra, 156 Cal.App.2d at p. 45, 319 P.2d 80.) But then again, as Justice Peters noted in his dissent in Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 318, 29 Cal.Rptr. 33, 379 P.2d 513, the facts in Amaya (mother witnessed truck run over her boy) were "very close" to Reed, which also held there could be no recovery, yet Amaya was overruled by Dillon v. Legg (1968) 68 Cal.2d 728, 748, 69 Cal.Rptr. 72, 441 P.2d 912 (mother witnessed child killed by negligent driver). Fortunately, the present case can be dealt with without proposing a grand scheme trying to reconcile everything that the Supreme Court and various panels of the Court of Appeal have ever written on the subject.

    233

    16 Thus our decision today might be different if the plaintiffs had all suffered heart attacks. However, we need not address the problem of whether a "hard" or palpable phenomenon, like a heart attack, brought on in a bystander to a plane crash by fear of being hurt in a plane crash, is recoverable. We need only note that the number of otherwise untouched bystanders who suffer heart attacks as a result of the fear of being hurt in a plane crash is going to be far fewer than the number of otherwise untouched bystanders who, as in the present case, really suffer only fear itself.

    235

    17 Our dissenting colleague acknowledges that the 1896 Sloane decision is not "precisely" on point, but extrapolates the principle of liability on which that decision was based into an inflexible rule which mandates liability for mere fear any time there is negligent conduct. As we have already indicated, that broad idea is untenable in the light of what our high court has said in the hundred years since that venerable case.

    237

    1 My brethren acknowledge the plaintiffs "may have felt some heat, wind and vibration in the few minutes before the crash," but explain, "[I]t would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash." (Maj. opn., ante, p. ----, fn. 5.) But we must accept as true all of the allegations contained in the complaint. The plaintiffs claim their injuries resulted from fear the plane would crash on them and from the heat, wind and vibration. In any event, standing alone, the allegation of fear from imminent peril is sufficient to state a cause of action for emotional distress damages.

    239

    2 The majority has turned this doctrine on its ear. As every first-year law student learns, tortfeasors take their victims as they find them. (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 292 [defendant liable for death of plaintiff, even though normal victim would have suffered only a bump on the head]; see also Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at p. 683, 44 P. 320 ["Whether the defendant ... knew of (the plaintiff's) susceptibility to nervous disturbance was immaterial"].)

  • 3 Emotional Harm: McDermott v. Reynolds

    McDermott received a telephone call from Reynolds’ wife informing him that she had just followed Reynolds and Flordeliza McDermott to a motel. McDermott had been married to Flordeliza for 18 years and they had three children. McDermott confronted Reynolds about his relationship with Flordeliza and demanded that Reynolds cease the adulterous relationship. Instead of ending the relationship, Reynolds “flaunted it outwardly.” McDermott alleged that Reynolds’ conduct was malicious and intended to cause severe embarrassment, humiliation and emotional distress to McDermott and his three children.

    1

    In this appeal, we consider whether Code § 8.01-220 bars a plaintiff's action against his former wife's paramour for intentional infliction of emotional distress, when the conduct alleged would support an action for alienation of affection, a cause of action specifically prohibited by the statute.

    2

    Glenn R. McDermott filed a motion for judgment against William Reynolds for intentional infliction of emotional distress based on Reynolds' alleged conduct in maintaining an adulterous relationship with McDermott's wife. Reynolds demurred to the motion for judgment, asserting that McDermott's action was "essentially one for alienation of affection" and, thus, was barred by Code § 8.01-220.

    3

    After hearing oral argument, the trial court concluded that McDermott's action was "clearly a case of alienation of affection" that was barred by Code § 8.01-220. The trial court entered final judgment sustaining the demurrer and dismissing the motion for judgment.

    4

    On appeal, McDermott argues that his action for intentional infliction of emotional distress is separate and distinct from an action 903*903 for alienation of affection. He contends that Code § 8.01-220 does not prohibit his action simply because the conduct on which his action is based has "overtones" of alienation of affection. McDermott also asserts that his damages arose from Reynolds' intentional infliction of emotional distress, not from Reynolds' alienation of the affection of McDermott's wife. We disagree with McDermott's arguments.

    5

    A demurrer will be sustained if the motion for judgment, considered in the light most favorable to the plaintiff, fails to state a valid cause of action. W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 384, 478 S.E.2d 295, 300 (1996); see Dray v. New Market Poultry Products, Inc., 258 Va. 187, 189-90, 518 S.E.2d 312, 312-13 (1999); Mortarino v. Consultant Eng'g Serv., Inc., 251 Va. 289, 295, 467 S.E.2d 778, 782 (1996); Luckett v. Jennings, 246 Va. 303, 307, 435 S.E.2d 400, 402 (1993). In reviewing a trial court's judgment sustaining a demurrer, we will consider as true the facts alleged in the motion for judgment, the facts impliedly alleged therein, and the reasonable factual inferences that can be drawn from the facts alleged. See Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 129, 523 S.E.2d 826, 829 (2000); Breeding v. Hensley, 258 Va. 207, 211-12, 519 S.E.2d 369, 371 (1999); Moore v. Maroney, 258 Va. 21, 23, 516 S.E.2d 9, 10 (1999).

    6

    As alleged in the motion for judgment, in December 1994, McDermott received a telephone call from Reynolds' wife informing him that she had just followed Reynolds and Flordeliza McDermott to a motel. McDermott had been married to Flordeliza for 18 years and they had three children. McDermott confronted Reynolds about his relationship with Flordeliza and demanded that Reynolds cease the adulterous relationship. Instead of ending the relationship, Reynolds "flaunted it outwardly."

    7

    Reynolds' conduct caused severe embarrassment and humiliation to McDermott and his three children. McDermott also alleged that by refusing his requests and continuing to "flaunt" the relationship, Reynolds acted maliciously and with the intent to cause McDermott severe emotional distress. As a result of his emotional distress, McDermott experienced sleeplessness, loss of weight, and interference with the performance of his duties as a physician. Further, Reynolds' conduct caused the "break up" of McDermott's family and required McDermott and his three children to seek counseling, resulting in financial losses to McDermott.

    8

    We first recognized the tort of intentional infliction of emotional distress in Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974). We held that a plaintiff may recover damages for emotional distress resulting from a non-tactile tort if he alleges and proves by clear and convincing evidence that: (1) the wrongdoer's conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the resulting distress is severe. 215 Va. at 342, 210 S.E.2d at 148; accord Delk, 259 Va. at 136, 523 S.E.2d at 833; Jordan v. Shands, 255 Va. 492, 498-99, 500 S.E.2d 215, 218-19 (1998); Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162 (1991).

    9

    The statute at issue in this appeal, Code § 8.01-220, provides:

    10

    A. Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversion upon which a cause of action arose or occurred on or after June 28, 1968.

    11

    B. No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974.The fact that Code § 8.01-220 does not contain a reference to the tort of intentional infliction of emotional distress does not affect our analysis, because that tort encompasses many types of conduct unrelated to the causes of action specified in the statute. We conclude that when the General Assembly enacted Code § 8.01-220, it manifested its intent to abolish common law actions seeking damages for a particular type of conduct, regardless of the name that a plaintiff assigns to that conduct. Therefore, in determining whether an action is barred by 904*904 Code § 8.01-220, we consider the conduct alleged in the plaintiff's motion for judgment.

    12

    The essential basis of McDermott's claim is that the defendant had an adulterous relationship with McDermott's wife, which he continued in an open and notorious manner after being confronted by McDermott. This alleged conduct is precisely the type of conduct that the General Assembly intended to exclude from civil liability when it enacted Code § 8.01-220. Thus, the fact that McDermott labels his claim as intentional infliction of emotional distress and recites the elements of that tort in support of his action does not shield the action from the statutory bar. We must consider the nature of the cause of action pleaded, not merely its form, in determining whether a plaintiff has stated a cause of action that will permit recovery of damages for the conduct alleged. See Philip Morris Inc. v. Emerson, 235 Va. 380, 407, 368 S.E.2d 268, 282-83 (1988).

    13

    We note that our conclusion is in accord with the decisions of a majority of jurisdictions that have considered claims for intentional infliction of emotional distress with reference to statutes substantially similar to Code § 8.01-220. The rationale underlying these decisions of our sister states, like our decision here, is based on the legislative intent manifested in these statutes to remove conduct of this nature from civil liability. See, e.g., Speer v. Dealy, 242 Neb. 542, 495 N.W.2d 911, 914-15 (1993); Strock v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235, 1242 (1988); Wilson v. Still, 819 P.2d 714, 716 (Okla.1991); Koestler v. Pollard, 162 Wis.2d 797, 471 N.W.2d 7, 9-10 (1991).

    14

    Our decision today reflects a disagreement with the analysis and result reached in Raftery v. Scott, 756 F.2d 335 (4th Cir.1985). There, the United States Court of Appeals for the Fourth Circuit considered an action in which a divorced spouse alleged that his former wife intentionally inflicted emotional distress on him by attempting to destroy his relationship with his son. The former wife sought dismissal of the action, contending that it essentially alleged that she caused an alienation of the child's affection for his father, and that such actions are barred by Code § 8.01-220. Id. at 338.

    15

    The Court of Appeals held that the facts of the case independently supported a claim for intentional infliction of emotional distress, although the conduct alleged had "overtones of affection alienation." 756 F.2d at 339. The Court stated that the two torts have different characteristics and require different proof, citing as an example the requirement for intentional infliction of emotional distress that the infliction be intentional and something more than a simple aggravation. 756 F.2d at 340. Thus, the Court of Appeals focused its analysis on the elements of the two torts, rather than on the conduct asserted by the plaintiff.

    16

    In contrast, we have based our analysis on a defendant's alleged conduct because that methodology allows us to consider the legislative intent manifested in Code § 8.01-220. By using this analysis, we effectuate that intent and foreclose a revival of the abolished tort of alienation of affection asserted in the guise of an action for intentional infliction of emotional distress.

    17

    For these reasons, we will affirm the trial court's judgment.

    18

    Affirmed.

  • 4 Emotional Harm: R.J. v. Humana of Florida, Inc.

    R.J. asserted that, through the negligence of Humana, he was incorrectly led to believe that he had contracted the HIV virus, causing him to suffer bodily injury and extreme mental anguish and emotional distress. The court dismissed the case for failure to state a cause of action, insisting that the R.J.’s complaint failed to meet the requirements of the impact rule. The court further explained that “although we find that the touching of a patient by a doctor and the taking of blood for ordinary testing would not qualify for a physical impact, other more invasive medical treatment or the prescribing of drugs with toxic or adverse side effects would so qualify.”

    1

    OVERTON, Justice.

    2

    This is a petition to review R.J. v. Humana, Inc., 625 So.2d 116 (Fla. 5th DCA 1993), in which the district court affirmed the trial court's holding that there was no physical impact sufficient to maintain a negligence action for an erroneous test showing that R.J. was HIV positive. In so holding, the district court certified the following question as one of great public importance:

    3

    DOES THE IMPACT RULE APPLY TO A CLAIM FOR DAMAGES FROM A NEGLIGENT HIV DIAGNOSIS?

    4

    Id. at 117. We have jurisdiction[1] and, for the reasons expressed, we answer the question in the affirmative, holding that damages for emotional harm as a result of a misdiagnosis cannot be recovered without a showing of some physical injury as a result of the misdiagnosis. Nevertheless, we find that R.J. should be allowed to amend the complaint to allege a cause of action consistent with the principles set forth in this opinion.

    5

    R.J.'s complaint alleges that on March 19, 1989, agents of Humana of Florida, Inc., d/b/a Humana Hospital-Lucerne (Humana), took blood from R.J.; that the blood was sent to Smithkline Beecham Clinical Laboratories, Inc. (Smithkline), for testing and analysis; that on March 30, 1989, Humana informed R.J. that the results of the blood test indicated that he was HIV positive; that Humana referred R.J. to Dr. William Robbins for medical care and treatment; that R.J. was not retested until he requested a new test approximately nineteen months later in November, 1990; and that this second test revealed that R.J. was not infected with the HIV virus. On these allegations, R.J. asserted that, through the negligence of Humana, Smithkline, and Dr. Robbins, he was incorrectly led to believe that he had contracted the HIV virus, "causing him to suffer bodily injury including hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and the reasonable expense of medical care and attention." The trial court dismissed the complaint with prejudice for failure to state a cause of action on the basis that it failed to meet the requirements of the impact rule.

    6

    On appeal, the Fifth District Court affirmed, noting that this Court has relaxed the requirement of the impact rule in a few limited situations but that the circumstances of this case did not fit into any of those excepted categories. The district court then certified the aforementioned question for a determination of whether the impact rule should apply to a case of negligent HIV diagnosis.

    7

    R.J. challenges the lower court's decision on three alternative grounds: (1) that the impact rule should be abolished; (2) that this Court should create an exception to the impact rule for cases involving negligent HIV diagnoses; or (3) that, if the impact rule does apply, sufficient facts are alleged in the complaint to meet the requirements of the impact rule.

    8

    The impact rule has had a long legal history in this state, beginning with this Court's decision in International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 So. 148 (1893). In essence, the impact rule requires that "before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact." Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992), review denied, 623 So.2d 494 (Fla. 1993). As explained by one commentator, the underlying basis for the rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims. 1 Thomas M. Cooley, Cooley on Torts 97 (3d ed. 1906). As this Court stated in Saunders, compensatory damages for emotional distress are "spiritually intangible," are beyond the limits of judicial action, and should be dealt with through legislative action rather than judicial decisions. 32 Fla. at 448, 14 So. at 152. Another commentator has stated that the requirement of a physical impact gives courts a guarantee that an injury to a plaintiff is genuine. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984). Further, without an impact requirement, defendants would not be sure whom they had injured or where they may have injured a 363*363 person, thus paralyzing their ability to defend themselves. Id. at 364.

    9

    In recent years, we have continued to uphold the impact rule, finding that the underlying basis for the rule still exists and that no new reason has been shown to justify overruling prior decisions of this Court regarding this issue. For instance, in Gilliam v. Stewart, 291 So.2d 593 (Fla. 1974), we found that an individual whose physical injuries were allegedly due to physical fright suffered when an automobile struck her house could not recover for those injuries because she had failed to show the requisite physical impact. Similarly, in Brown v. Cadillac Motor Car Division, 468 So.2d 903 (Fla. 1985), we found that the driver of a defective automobile that struck and killed the driver's mother had no cause of action for his mental distress because he sustained no physical injury. And, in Doyle v. Pillsbury Co., 476 So.2d 1271 (Fla. 1985), we held that impact in the form of ingestion of food must occur before one can recover for emotional damages as a result of finding an insect in food.

    10

    This does not mean that emotional injuries are never recoverable when a physical impact is not present. We have created limited exceptions. We expressly recognized the tort of intentional infliction of emotional distress under which emotional distress is recoverable even if no physical impact is present. See Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla. 1990); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985). In Eastern Airlines, we explained the application of a claim for intentional infliction of emotional distress, noting that an intentional infliction claim is only viable when the conduct causing the emotional distress is outrageous.[2] As Justice Ehrlich noted in his concurring opinion in Eastern Airlines, however, the impact rule has remained a part of the law of this state. 557 So.2d at 579 (Ehrlich, C.J., concurring). Additionally, in Champion v. Gray, 478 So.2d 17 (Fla. 1985), we held that psychological trauma and mental distress are recoverable as elements of damage without direct physical impact in cases where a plaintiff was in the sensory perception of physical injuries negligently imposed upon a close family member and where the plaintiff suffered a discernible physical injury. More recently, in Kush v. Lloyd, 616 So.2d 415, 422 (Fla. 1992), we held that the impact rule should not be applied to actions for wrongful birth where emotional damages are the "`parasitic' consequence of conduct that itself is a freestanding tort." In carving these exceptions to the impact rule in both Champion and Kush, we nevertheless reaffirmed the appropriateness of the impact rule in most circumstances and carefully restricted the exceptions.

    11

    We reaffirm today our conclusion that the impact rule continues to serve its purpose of assuring the validity of claims for emotional or psychic damages, and find that the impact rule should remain part of the law of this state. Consequently, we reject R.J.'s request that we abolish the impact rule. We also reject R.J.'s argument that, as a matter of public policy, this Court should create a limited exception to the impact rule for a negligent HIV diagnosis.

    12

    Without question, allowing compensation for emotional distress in the absence of a physical injury under the circumstances of this case would have a substantial impact on 364*364 many aspects of medical care, including the cost of providing that care to the public. Were we to create such an exception, we would, of necessity, also be allowing a claim for emotional distress for any misdiagnosis made from negligent medical testing. We could not limit an exception for negligent misdiagnosis to cases specifically involving the HIV virus while excluding other terminal illnesses. Moreover, it would be exceedingly difficult to limit speculative claims for damages in litigation under such an exception. Given that the underlying policy reasons for the impact rule still exist, we find that no special exception is justified under the circumstances of this case.

    13

    Finally, we reject R.J.'s argument that his second amended complaint contains sufficient allegations to meet the requirements of the physical impact rule. As previously indicated, R.J. claimed that, as a result of the misdiagnosis, he suffered "bodily injury including hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and the reasonable expense for medical care and attention." We find that these intangible, mental injuries are insufficient to meet the physical injury required under the impact rule. We do recognize, however, that a negligent misdiagnosis such as the one at issue could result in unnecessary and harmful medical treatment that does in fact cause bodily injury, which, in turn, would satisfy the requirements of a physical impact. Although we find that the touching of a patient by a doctor and the taking of blood for ordinary testing would not qualify for a physical impact, other more invasive medical treatment or the prescribing of drugs with toxic or adverse side effects would so qualify. If R.J. can establish that the misdiagnosis in this case led to invasive medical treatment or prescriptions of caustic medication such as Azidothymidine (commonly known as "AZT"), and that he suffered bodily injury from that treatment, then he would have met the requirements of the impact rule and would be able to recover for the emotional trauma suffered as a result of that treatment.

    14

    We note that R.J. has had four opportunities to state a cause of action in this case. Ordinarily, when a plaintiff has had multiple opportunities to state a case of action, we would not allow a further amendment to the plaintiff's complaint. Given this unique factual situation, however, we find that R.J. should have an opportunity to state a claim under the principles set forth in this opinion.

    15

    Accordingly, we answer the certified question in the affirmative, quash the district court's decision to the extent that it is inconsistent with this opinion, and return this case to the district court with directions that it remand the case to the trial court to allow R.J. to amend the complaint.

    16

    It is so ordered.

    17

    GRIMES, C.J., SHAW and HARDING, JJ., and McDONALD, Senior Justice, concur.

    18

    KOGAN, J., concurs specially with an opinion.

    19

    KOGAN, Justice, specially concurring.

    20

    Any analysis of the impact rule must begin by placing it in its historical context. As traditionally conceived, the impact rule required that the negligent act itself (1) created a direct and immediate physical impact (2) that proximately and foreseeably caused a physical injury (3) that caused or was associated with psychological distress. See, e.g., Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992), review denied, 623 So.2d 494 (Fla. 1993). Here was the nub of the rule: Absent the impact, the injury might be compensable but the distress was not. With impact, both were compensable. One judge described the underlying policy in the following terms:

    21

    There must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society.Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA 1972) (Reed, C.J., dissenting), quashed 291 So.2d 593 (Fla. 1974).

    22

    From its inception, the impact rule essentially imposed a temporal element necessary for recovery: The negligent act had to inflict an immediate impact, not merely an injury at some remove. One of the more frequent 365*365 fact patterns in the case law was of pregnant women who suffered a fright and then miscarried some time later. In the early days of the impact doctrine, the courts in England and the United States seemed quite uniform in denying liability in these cases, based on the impact doctrine. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 54, at 363 (5th ed. 1984). This was because there was injury (the miscarriage) but no immediate "impact."

    23

    Beginning at the end of the last century, a number of jurisdictions became heartily dissatisfied with the obvious harshness of the impact rule. As a result, many courts strained the rule well beyond its limits in an effort to achieve justice. The leading authority in American tort law pokes considerable fun at some of the absurdities the rule engendered. Among the events courts found to be "impacts" are dust in the eye, inhalation of smoke, and a circus animal "evacuat[ing] his bowels" into a plaintiff's lap. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 54, at 363-64 (5th ed. 1984).

    24

    As a result of this dissatisfaction, a new and more reasonable rule emerged that now is recognized in more than thirty states. Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673 at 674 & n. 1 (Fla. 1995). It can be described as the "actual-injury" rule.[3] While some have characterized this new rule as a major departure, it actually is not. All that it did was eliminate the impact requirement — the temporal element — which already was being ignored in a number of creative if disingenuous ways. Under this second rule, a plaintiff must prove that the negligent act itself (1) proximately and foreseeably caused an injury (2) that caused or was associated with psychological distress. If an injury existed, then recovery for the distress also was allowed. Without injury, there could be no recovery.

    25

    A few states have gone further by eliminating the injury requirement, thereby establishing negligent infliction of emotional distress as a freestanding tort. But the actual-injury rule nevertheless remains the controlling law in the clear majority of American jurisdictions. Id. Florida has never recognized negligent infliction of emotional distress as a freestanding tort.

    26

    I think that this Court's discussion of the impact rule in recent years has lost sight of the fact that there are three different rules states have adopted, not merely two. The majority falls into this mistake when it argues that the only alternative to the impact rule would be to permit recovery "in the absence of physical injury." Majority op. at 363. Having said this, the majority then proceeds to hold that a cause of action nevertheless exists if misdiagnosis results in inappropriate medical care that in turn causes "bodily injury." Majority op. at 364; accord Kush v. Lloyd, 616 So.2d 415, 422-23 (Fla. 1992).

    27

    I frankly have some difficulty saying that the "impact" identified by the majority here can be considered the direct and immediate consequence of the negligent act, at least in the classic sense. The temporal element of the traditional impact rule meant that the negligent act and the impact must occur virtually simultaneously. Here, such is not the case. While the record is not clear, it is susceptible of a construction that the negligent blood test may have resulted in many months of inappropriate medical treatment, which caused an injury. But characterizing this as an "impact" would not be accurate, any more than would so characterizing the loss of a fetus in the miscarriage cases. The majority is blurring the concepts of "impact" and "injury," and thereby may be abrogating the Florida impact rule in actual effect.

    28

    The distinction between impact and injury is a crucial one if the majority actually believes it is preserving the impact rule by today's opinion. I think this conclusion is especially compelling in light of a contemporaneous case this Court is deciding. In Gonzalez, 651 So.2d at 674, the Court expressly distinguishes the impact rule and the actual-injury rule in the same terms I have used above. Yet, we are not fully honoring the distinction in practice, as several other cases 366*366 also demonstrate. Kush, 616 So.2d at 422-23.

    29

    I do not quarrel with the result the majority reaches. If misdiagnosis proximately and foreseeably causes a person to receive inappropriate treatment, then a cause of action should and does exist in Florida both for the injury sustained and the emotional distress suffered. This is true whether or not there is an "impact," because any other result would be inherently unfair and contrary to the central policies of tort law. Id. at 424 (tort law meant to put injured party in nearly the state that would have existed absent negligent injury). Yet, I also think the time has come for us to acknowledge the confusion caused by our case law when we mistakenly and vehemently "reaffirm" the impact rule while we ourselves actually seem to be laying it in the grave.

    30

    Today's decision may well be distinguished on its facts or limited to misdiagnosis cases. But I do not see how we can tacitly equate impact and injury without ultimately doing so in every other negligent-infliction case. When that day comes, Florida will honor the impact rule in name only, and the actual-injury rule will otherwise prevail. Indeed, that day may already have arrived


  • 5 Emotional Harm: Russo v. White

    Patricia B. Russo, a single parent who lives with her teen-age daughter, sought to recover against Burton White for his allegedly outrageous conduct. Russo alleged that in the Spring of 1987 she “went on a date with defendant” and thereafter “did not date defendant again.” Then Russo began receiving numerous “hang-up” calls from April through June, 1987. Between November 25, 1987 and January 28, 1988, she received 340 “hang-up” calls; Russo contacted the police in January 1988, and, with the aid of the police and the telephone company, they observed White making 15 phone calls to plaintiff in quick succession from a telephone booth. Russo alleged that White’s conduct caused her extreme emotional distress.

    1

    COMPTON, Justice.

    2

    In this tort action, the plaintiff seeks recovery in damages for alleged intentional infliction of emotional distress, independent of any physical injury and unaccompanied by any physical impact. On appeal, we determine whether the trial court erred in sustaining the defendant's demurrer.

    3

    We will consider the plaintiff's allegations according to "the settled rule that a demurrer admits the truth of all well-pleaded material facts. All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer does not admit the correctness of the pleader's conclusions of law." Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988).

    4

    In an amended motion for judgment, appellant Patricia B. Russo sought to recover against appellee Burton White for his allegedly outrageous conduct. The plaintiff asserted that she is a single parent who lives with her teen-age daughter. She alleged that in the Spring of 1987 she "went on a date with defendant" and thereafter "did not date defendant again."

    5

    According to the pleading, plaintiff began receiving numerous "hang-up" calls from April through June, 1987. She asserted that in August 1987, defendant was convicted under Code § 18.2-429 of "`causing telephone to ring with intent to annoy,'" a misdemeanor.

    6

    Plaintiff further alleged that the same type of calls resumed in the Fall of 1987 and she began "keeping a log." Between November 25, 1987 and January 28, 1988, she received 340 "hang-up" calls, according to the plaintiff. Continuing, she alleged that she contacted the police in January 1988, and, with the aid of the police and the telephone company, "defendant was observed making 15 phone calls to plaintiff in quick succession from a telephone booth." She asserted that defendant was served with 15 warrants for committing the same crime for which he had been convicted during the previous August. The charges, she noted, "were taken under advisement."

    7

    The plaintiff also alleged that some of the calls were made at times which made "it apparent that defendant was watching plaintiff's house." According to plaintiff, defendant's conduct caused her "extreme emotional distress" because "not knowing defendant very well, she was not ... aware of his proclivity for violence." She asserted that this "consideration" weighed heavily on her, "due to her vulnerability as a single parent, and since she must leave her minor daughter alone at times."

    8

    Concluding, plaintiff alleged that, as a proximate result of defendant's "intentional acts," she suffered "severe emotional distress." This resulted, she asserted, in "nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities which might necessitate plaintiff leaving her daughter at home, [and] lack of 162*162 concentration at work to the point where she received a reprimand."

    9

    In a demurrer to the amended motion, defendant contended that plaintiff failed to sufficiently set forth "either the legal elements or factual basis" to support a claim of "intentional infliction of emotional harm." Upon consideration of argument of counsel, the trial court sustained the demurrer. We awarded the plaintiff this appeal from the January 1990 judgment order dismissing the action.

    10

    In Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974), this Court joined a growing number of jurisdictions which explicitly recognized the existence of an independent tort referred to as "the intentional infliction of emotional distress," sometimes called the tort of "outrage." See annot., Modern Status of Intentional Infliction of Mental Distress as Independent Tort; "Outrage." 38 A.L.R.4th 998 (1985). Academics take credit for the development of this modern tort, which was finally defined in the Restatement (Second) of Torts § 46 (1965) (hereinafter Restatement). Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L. Rev. 42, 42-43 (1982).

    11

    The tort, however, "differs from traditional intentional torts in an important respect: it provides no clear definition of the prohibited conduct." Id. at 51. Assault, battery, and false imprisonment "describe specific forms of behavior," but the term "outrageous" "does not objectively describe an act or series of acts; rather, it represents an evaluation of behavior. The concept thus fails to provide clear guidance either to those whose conduct it purports to regulate, or to those who must evaluate that conduct." Id. Indeed, we have said recently that such torts are "not favored" in the law. Ruth v. Fletcher, 237 Va. 366, 373, 377 S.E.2d 412, 415 (1989).

    12

    Nevertheless, in an effort to establish meaningful standards for adjudication of such claims, we adopted a four-pronged approach in Womack, patterned after the Restatement definition. We stated that emotional distress resulting from a non-tactile tort may be compensated if the plaintiff alleges, and proves by clear and convincing evidence, that: the wrongdoer's conduct is intentional or reckless; the conduct is outrageous and intolerable; the alleged wrongful conduct and emotional distress are causally connected; and, the distress is severe. 215 Va. at 342, 210 S.E.2d at 148.

    13

    In this case, the defendant does not dispute that the plaintiff's pleading sufficiently alleges facts to comply with the first and third prongs of Womack. Thus, we will address the remaining two prongs, keeping in mind that the trial court must initially determine whether the facts alleged will support a finding of both outrageousness and severe emotional distress. See Restatement comments h and j; Ruth, 237 Va. at 368, 377 S.E.2d at 413.

    14

    Under the second prong, it is insufficient for a defendant to have "acted with an intent which is tortious or even criminal." Restatement comment d. Even if a defendant "has intended to inflict emotional distress," or his conduct can be "characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort," the requirement of the second prong has not been satisfied. Id. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.

    15

    The plaintiff contends that for "White to call her over a two month period an average of 5.6 times per day is intolerable and offends any sense of decency and morality in a civilized society." Conceding that defendant did not speak during the calls, plaintiff argues that they nonetheless were "threatening" because of "their frequency and the fact that White was calling a single parent with a young child who had extremely limited contact with him so as not to be able to judge White's proclivity for violence." She contends that, given the persistence with which defendant "harassed" her with "these threatening calls, 163*163 it was more than reasonable for her to feel that White was likely to escalate the matter to the point of violence." Thus, according to plaintiff, defendant's conduct constituted intentional infliction of emotional distress.

    16

    We will agree with the plaintiff and assume, without deciding, that defendant's conduct rose to the level of outrageousness required to support the cause of action. Consequently, we will focus on the fourth prong of Womack and decide whether the plaintiff's emotional distress was "severe."

    17

    The term "emotional distress" travels under many labels, such as, "mental suffering, mental anguish, mental or nervous shock.... It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea." Restatement comment j. But liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it. Id.

    18

    Here, plaintiff alleged that she suffered "severe emotional distress" and "extreme emotional distress." But, even on demurrer, the court is not bound by such conclusory allegations when the issue involves, as here, a mixed question of law and fact. This is not a negligence case where, according to Rule 3:16(b), an allegation of "negligence" is sufficient without specifying the particulars. In the present claim, "a plaintiff must allege all facts necessary to establish" the cause of action. Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897 (1989) (trial court erred in failing to sustain demurrer to count in motion for judgment alleging intentional infliction of emotional distress).

    19

    The plaintiff has alleged that she was nervous, could not sleep, experienced stress and "its physical symptoms," withdrew from activities, and was unable to concentrate at work. There is no claim, for example, that she had any objective physical injury caused by the stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income. Consequently, we conclude that the alleged effect on the plaintiff's sensitivities is not the type of extreme emotional distress that is so severe that no reasonable person could be expected to endure it.

    20

    Therefore, we hold that the trial court correctly sustained the demurrer, and the judgment of dismissal will be

    21

    Affirmed.

    22
    HASSELL, Justice, with whom STEPHENSON and LACY, Justices join, dissenting.
    23

    I dissent because I believe that Ms. Russo properly pled a cause of action for the tort of intentional infliction of emotional distress and, therefore, she should not be deprived of her opportunity to prove her allegations before a jury.

    24

    Even though the tort of intentional infliction of emotional distress is a disfavored cause of action, it remains a viable cause of action until it is abolished. This cause of action is certainly appropriate under the facts and circumstances of this case in light of White's alleged despicable conduct. According to the allegations in the motion for judgment, which we must deem true at this stage of the proceedings, White intentionally embarked upon a course of conduct designed to harass and frighten Russo, a single parent who lived with her 14-year-old daughter. He placed in excess of 340 "hang-up" calls to her home and was arrested and convicted of causing a "telephone to ring with intent to annoy" in violation of Code § 18.2-429.

    25

    White's alleged conduct was so outrageous in character, and so extreme in degree, as to transcend all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Without question, his alleged conduct was absurd, flagrant, intemperate, intentional, malicious, harassing, intimidating, annoying, childish, misguided, and reprehensible. White's conduct was beyond the "bounds of decency" and should not be tolerated in a civilized community.

    26

    I disagree with the majority's conclusion that Russo's amended motion for judgment fails because she did not allege facts indicating extreme emotional distress which is "so severe that no reasonable person could be expected to endure it."[*] Russo alleges in paragraph 12 of her amended motion: "As a proximate result of defendant's intentional acts, plaintiff suffered severe emotional distress resulting in nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities which might necessitate plaintiff leaving her daughter at home, lack of concentration at work to the point where she received a reprimand." Certainly, no reasonable person could or should be expected to endure the injuries endured by Russo.

    27

    I disagree with the majority's reliance upon Ely v. Whitlock, 238 Va. 670, 385 S.E.2d 893 (1989). In Ely, we held that the trial court erred because it did not sustain a demurrer to a count in a motion for judgment alleging intentional infliction of emotional distress. There, the plaintiffs alleged:

    28

    "[t]he statements and conduct of Rae H. Ely, as set forth in Counts I, II, and III of this Motion for Judgment were made and carried out by her intentionally and/or recklessly, were outrageous and intolerable and offend against generally accepted standards of decency and morality, and have proximately caused severe emotional distress to your plaintiff." Id. at 677, 385 S.E.2d at 897. We stated that the plaintiffs in Ely failed to allege that the defendant's acts were undertaken "for the specific purpose of inflicting emotional distress upon them, and that [the defendant] intended her specific conduct and knew or should have known that emotional distress would likely result." Id. Russo's amended motion for judgment does not contain these deficiencies.

    29

    Finally, I disagree with the majority's conclusion that Russo's motion for judgment contains "no claim ... that she had any objective physical injury caused by stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income." Russo alleged, as the majority acknowledges, that she suffered "stress and its physical symptoms." This allegation, in my opinion, is sufficient at the demurrer stage of the proceedings. Furthermore, in certain instances, physical injury is not an element required to establish the tort of intentional infliction of emotional distress. Naccash v. Burger, 223 Va. 406, 415-16, 290 S.E.2d 825, 830-31 (1982); Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974). Russo should have been given the opportunity to present medical testimony at trial regarding the nature and extent of her emotional and physical injury. I am not aware of any decision, before this case, wherein we have required a plaintiff to plead in a motion for judgment that "she sought medical attention" or that "she was confined at home or in a hospital." Accordingly, I would reverse the judgment of the trial court and remand the case for a jury trial.

    30

    [*] Not only does the majority create a new requirement that has not heretofore been articulated by this Court, but it is a requirement that I believe Russo has met. The majority relies upon the Restatement (Second) of Torts § 46 comment j (1965) and adopts its requirement that "liability arises only when emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it.

  • 6 Emotional Harm: Lawson v. Management Activities, Inc.

    A group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them and the injury from the ensuing explosion. The jet didn’t crash into them. Rather, it crashed into nearby ground. Despite their fears, the jet crashed into the nearby ground, and the employees were among the first to arrive at the scene of the crash to offer whatever assistance they could, and to observe the aftermath. The court declined to find emotional harm, stating “the law can hardly permit a major tort suit for unpredictable emotional distress damages for every near-miss and otherwise uneventful unsafe lane changes.”

    2

    Page 745

    5
    81 Cal.Rptr.2d 745

    8
    69 Cal.App.4th 652, 99 Cal. Daily Op. Serv. 806,

    11
    99 Daily Journal D.A.R. 939

    14
    James LAWSON et al., Plaintiffs and Appellants,
    v.
    MANAGEMENT ACTIVITIES, INC., et al., Defendants and Respondents.

    17
    No. G019872.

    20
    Court of Appeal, Fourth District, Division 3, California.

    23
    Jan. 27, 1999.
    25

    Page 746

    27

            [69 Cal.App.4th 654] Lisa R. Geraurd, Los Angeles, for Plaintiffs and Appellants.

    29

            Michaelis, Montanari & Johnson, Garry L. Montanari, Westlake Village, and Wesley S. Wenig, Woodland Hills, for Defendants and Respondents.

    32
    OPINION
    34

            SILLS, P.J.

    36

    Introduction and Facts

    38

            In December 1993, a group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them. They feared injury from the ensuing explosion.

    40

            The jet didn't crash into them. Rather, it crashed into nearby ground. Despite their fears, the employees were among the first to arrive at the scene of the crash, to offer whatever assistance they could, and to observe the aftermath.

    42

    Page 747

    44

            The employees, led by James Lawson, later sued Management Development Corporation and several related entities, the owners and operators of the jet, for the "serious, substantial and enduring mental anguish" occasioned by the crash. The trial court dismissed the case after it sustained a demurrer without leave to amend and Lawson and his coworkers brought this appeal. 1

    46

            If this court were to apply the principles articulated in Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894, Justice McDaniel's tour de force in the area of damages for emotional distress under a negligence theory (the reader should note we do not use the phrase "negligent infliction of emotional distress"), we might end this opinion right here with a summary affirmance.

    48

            To oversimplify the Bro opinion, emotional distress recovery in negligence falls into two categories, "direct victim" and "bystander" situations, depending on whether the plaintiff suffered emotional distress upon seeing someone else physically hurt--if so, then it is a "bystander" situation, if not, "direct victim." If the plaintiff claims direct victim status, Bro divines the [69 Cal.App.4th 655] requirement that there be both a preexisting consensual relationship between the parties (see e.g., Bro, supra, 22 Cal.App.4th at pp. 1416, 1427, 27 Cal.Rptr.2d 894) and the defendant's conduct reach a certain level of outrageousness (see e.g., id. at pp. 1434, 1438-1439, 1441, 27 Cal.Rptr.2d 894). In the case before us, there is no doubt that there was no preexisting relationship between the parties, much less a consensual one. Nothing comes close to outrageousness. Quite the opposite really: The reasonable inference from the complaint is that the captain of the jet courageously managed to avoid crashing into a populated area.

    50

            The plaintiffs, however, argue that their case cannot be shoehorned into the categories of "direct victim" or "bystander" because they feared for their own safety in those few horrific moments before the crash. And they point to a body of California case law, most recently relied on by the Ninth Circuit in another airplane crash case, In re Air Crash Disaster Near Cerritos, Cal. (9th Cir.1992) 973 F.2d 1490, to propound the rule that individuals who simply fear for their own safety because of a defendant's negligence may always recover for the ensuing emotional distress. 2 We also note that the recent decision in Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 takes issue with both the preexisting relationship and outrageous conduct requirements articulated in Bro for "direct victim" cases based on fear for one's own safety. (See Wooden, supra, 61 Cal.App.4th at pp. 1038-1042, 71 Cal.Rptr.2d 891.)

    52

            We will not attempt, in this opinion, to articulate any great general rules for emotional distress cases--the Supreme Court will have its hands full when, if ever, it attempts to articulate one grand unified theory in the area. 3 We will only decide the case before us, though that requires that we respectfully decline to follow the Wooden decision to the degree that its facts--a car crash in which a literal bystander feared for her own safety--might be extrapolated to the airplane crash before us. Applying the standard seven-factor analysis by which our high court has traditionally ascertained duty in tort law, we hold that the duty of care imposed on airplane operators does not extend to the emotional distress suffered by physically untouched spectators of plane crashes, even spectators who, for a brief moment, reasonably fear for their own safety.

    54

    [69 Cal.App.4th 656]

    56

    Back to the Basics

    58

            One observation is necessary at the beginning of any case involving an emotional distress

    60

    Page 748

    62

            For example, while the Wooden case was careful to recognize that "NIED is simply a species of negligence" (Wooden, supra, 61 Cal.App.4th at p. 1046, 71 Cal.Rptr.2d 891), the opinion also casually referred to the "NIED theory" (see id. at p. 1041, 71 Cal.Rptr.2d 891) as if the "NIED theory" were something already firmly established. At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress. (E.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795 ["there is no independent tort of negligent infliction of emotional distress"]; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197 ["We have repeatedly recognized '[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.' "]; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884, 2 Cal.Rptr.2d 79, 820 P.2d 181 ["Negligent infliction of emotional distress is not an independent tort.... "]; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278 [substantially same as Burgess ].) Indeed, civilized life would not be possible if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then "who can stand?" No one, saint or sinner, can go through life without "negligently" inflicting emotional distress on others. (Cf. Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 495, 69 Cal.Rptr.2d 244 [making point that heartache and pain are inherent in certain human relationships].) 4

    64

            Instead of lumping emotional distress cases under one heading and then, like Einstein, searching for a grand consistent theory to reconcile the cases, [69 Cal.App.4th 657] it is more in keeping with the fact that NIED is not a separate doctrine to ask: What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence? It is true that the question, however phrased and whatever its permutations, requires more words than just "NIED," and therefore is more cumbersome to write. But at least the asking of it reminds us what we are dealing with. When the question is asked, a court is not likely to stray too far from the fundamentals of basic negligence law, that is, the "traditional elements of duty, breach of duty, causation, and damages." (See Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197, quoting Marlene F., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.)

    66

            The question before us, then, is not a mechanistic inquiry as to whether fear-for-own-safety cases fall under the rubric of "direct victim," "bystander" or perhaps a third legal category for "zone of danger" (as plaintiffs, understandably afraid that we might follow Bro, urge upon us). It is not a matter of simply pigeonholing our facts into some neat legal category. Rather, the fundamental question is whether the duty of care necessarily attendant upon operating an airplane extends as far as those who fear for their own safety in a crash, even though they remain literally untouched. 5

    68

    Page 749

    70

            On that score the answer is no. When this case is looked at in light of the seven factors traditionally used by our Supreme Court to determine the existence of a duty, the balance tips decidedly against liability. The traditional factors are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (See Burgess, supra, 2 Cal.4th at pp. 1079-1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Christensen, supra, 54 Cal.3d at pp. 885-886, 2 Cal.Rptr.2d 79, 820 P.2d 181; Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16.)

    72

    The Seven Factors

    74

            As Bro pointed out, foreseeability is of limited usefulness in delineating duty in emotional distress cases. (See Bro, supra, 22 [69 Cal.App.4th 658] Cal.App.4th at p. 1413, 27 Cal.Rptr.2d 894; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d 814 [noting that foreseeability alone is not " 'useful' " in emotional distress cases because it provides no limits on liability for " 'nonphysical harm' "].) Foreseeability is independent of any preexisting relationship which, as the Bro court (rightly) points out, provides a natural limitation on liability. It takes no imagination to realize that people on the ground who are close to an airplane crash are going to be very scared. By the same token, while it is foreseeable that the fright will be intense, it is also foreseeable that the actual fright itself will be short lived. What is not foreseeable is the severity of people's psychological reactions to the crash. Emotional distress is a murky cauldron of actuarial imprecision, inherently limitless. It is also an area of remarkable individual idiosyncracity, with great extremes at either end. The Lord High Executioner in the Mikado was ready to commit suicide if he was rejected by the elderly Katisha 6; Private Ryan, the fictional embodiment of a generation of World War II veterans, stoically endured the death and dismemberment of close comrades who gave their lives to rescue him, and then went on to live a productive life. 7 At least in the context of the foreseeability factor in emotional distress cases like this one, tort law cannot countenance the doctrine of the "eggshell psyche."

    76

            On balance, foreseeability itself does not count for much, one way or the other, on the question of liability for emotional distress to otherwise unhurt bystanders to airplane crashes.

    78

            By contrast, the certainty of injury is a factor that squarely weighs against liability. Again, the key is the loosey-goosey nature of a pure emotional distress claim. One can always worry oneself sick, almost as a matter of will. The reality of psychological injury remains--and perhaps, despite CAT scans, PET scans, MRIs and who knows what the future holds, always will remain--a subject of intense philosophical debate. There is always the suspicion that extending the tort duty gives plaintiffs an incentive to malinger or worry themselves into a state of depression. Suffice to say for purposes of this case that certainty of injury is something that we do not have. Yes, the question of the reality of injury can go to a jury, but that is not [69 Cal.App.4th 659] the point. Psychological symptoms are much more susceptible to being faked than more palpable effects. 8

    80

    Page 750

    82

            The third factor is the closeness of the connection between the defendant's conduct and the injury suffered. Here, the factor certainly does tilt in the direction of liability. There is no reasonable doubt that being near a plane crash and fearing for one's own safety during those few terrible moments before the crash is going to be traumatic. The factor is ameliorated somewhat, however, by the differences in psychological constitutions among people. Some people will act heroically in situations of disaster--indeed, it appears that the plaintiffs, regardless of how traumatized they were from the few moments of fear before the crash, summoned up great courage in going to the crash after they realized they were out of danger. One cannot predict, for example, how many people in the vicinity of a plane crash are already predisposed to depression, or--because of their own unique experiences--are inclined to fall to pieces in any disaster, act heroically, or, as the complaint suggests here, act heroically and then go into depression. There will always be some trauma, of course. How much, again, is unpredictable.

    84

            The fourth factor is the moral blame attached to the defendant's conduct. This factor weighs heavily against liability. Plane crashes, much more so than car crashes, tend to be fatal. There is far more reckless driving than reckless flying. Plane crashes are usually the result of some tragic error in the maintenance or operation of the plane--at worst, negligence in light of a very high standard of required performance--rather than any kind of moral indifference to the possibility of injury. Nothing is to be gained by extending the liability attendant upon air crashes to the emotional distress of ground spectators.

    86

            Next there is the policy of preventing future harm, to which the same considerations apply as moral blame. The high likelihood of death and the inevitable liability which will come to those physically affected is more than sufficient to deter "future harm." Beyond that, there is regulatory apparatus devoted to air safety which, in quality and intensity of care, is already [69 Cal.App.4th 660] disproportionate to the safety apparatus which regulates automotive traffic. 9 Extending liability for plane crashes to emotionally distressed bystanders--bystanders in the literal sense--accomplishes virtually nothing in the way of marginally increased deterrence.

    88

            The final two factors--the extent of the burden to the defendant and the general macroeconomic consequence (if we may be so bold as to so characterize the final factor) to the community--also weigh against liability. The actuarial unpredictability of emotional distress damages could add significantly to the cost of insuring air transportation. A federal district court summed up the problem nicely when it declared: "This Court is not prepared to extend [the airline's] direct duty to all the non-passengers it's [sic ] planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to 'virtually limitless ... tort liability.' " (Air Crash Disaster at Cove Neck Long Island, N.Y. (E.D.N.Y.1995) 885 F.Supp. 434, 440.)

    90

            Air crashes are inevitably going to be very expensive disasters. They usually make the newspapers in a way that car crashes don't. Most air crashes are going to involve some collateral damage to surrounding property and pose a serious risk to bystanders of tangible harm from flying debris. The demands on the insurance pool for recovery are

    92

    Page 751

    94

            In short, the factors which determine duty weigh, on balance, against liability for emotional distress damages to otherwise unhurt bystanders. What factors tilt in the direction of liability don't tilt very far; the factors against weigh decidedly against.

    96

    Prior Cases and the "Zone of Danger"

    98

            In In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d 1490, a couple at home heard two loud noises and suffered severe shock and fright [69 Cal.App.4th 661] when two airplanes collided in mid-air and crashed one hundred yards away. The Ninth Circuit concluded that California law would permit the couple to recover for their emotional distress damages, albeit with one judge dissenting because the couple did not actually witness the crash. 10 (See id. at p. 1491, 1491 fns. 1 & 2.) In doing so, the Ninth Circuit relied on a series of cases which can appear, at least on first blush, to support the broad proposition that California tort law permits recovery for emotional distress whenever one reasonably fears for one's own safety. And indeed, the dissenting judge nicely encapsulated what her colleagues were saying when she wrote:

    100

            "As Judge Canby explains, for years the California courts have recognized recovery for emotional distress on account of reasonable fear for one's own safety. See Lindley v. Knowlton 179 Cal. 298, 176 P. 440 (1918); Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532 (1931), partially overruled on other grounds, San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951); Cook v. Maier 33 Cal.App.2d 581, 92 P.2d 434 (1939); see also Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 300-04, 29 Cal.Rptr. 33, 379 P.2d 513 (1963) (acknowledging Lindley and Webb but declining to extend recovery to fear for safety of others), partially overruled by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Vanoni v. Western Airlines, 247 Cal.App.2d 793, 56 Cal.Rptr. 115 (1967). These cases have never been overruled, and I agree with the majority that they remain good law." (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at p. 1494 (dis. opn. of Rymer, J.).)

    102

            With due respect to the Ninth Circuit, we must disagree that California tort case law may be read for the broad proposition that emotional distress damages are available whenever one reasonably fears for one's own safety because of the negligence of another, regardless of actual circumstances or context. The proposition is simply too broad. A moment's reflection should reveal that there are too many situations in modern life when one can reasonably be scared for one's own safety. Permitting a lawsuit for just that fright would clog the courts and make transpiration and commerce impossible. Duty is a question of law which depends on the " 'foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability.' " (Marlene F., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278, quoting Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189.) The law can hardly permit a major tort suit for unpredictable emotional [69 Cal.App.4th 662] distress damages for every near-miss and otherwise uneventful unsafe lane change. 11

    104

    Page 752

    106

            Scratch a great legal problem and you are likely to find a great philosophical problem. The question of emotional distress damages implicates nothing less than the mind-body problem in philosophy. 12 We are not about to try to solve that great quandary here, 13 but there is no way one can read the cases in the emotional distress area without recognizing that the mind-body problem was the core preoccupation of the fear-for-one's-own-safety cases relied on by the Ninth Circuit in Air Crash Disaster Near Cerritos. Those cases were not classic "duty cases," in the tradition of Burgess, Christensen and Biakanja. Rather, the focus of those cases was merely the rejection of a per se rule against physical damages arising out of emotional distress given the particular facts at hand.

    108

            [69 Cal.App.4th 663] The fountainhead case in the area is the late 19th Century decision, Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 44 P. 320. Indeed, plaintiffs rely on Sloane here. Sloane involved a claim for mental suffering on the part of a passenger on a train who tried to travel from North Pomona to San Diego via San Bernardino. On the Pomona-San Bernardino leg of the trip a conductor took her ticket, but gave her no transfer ticket or receipt. She had to change trains in San Bernardino, but she was forced to leave in East Riverside when the conductor on that train found she had no ticket. She walked to her sister-in-law's in Colton from East Riverside, and later sued the railroad. After a relatively large award against the railroad for its "wrongful acts committed ... in violation of its contract" (so large, in fact, that the award itself was reversed by the Supreme Court, see id. at pp. 687-688, 44 P. 320), the railroad appealed the judgment on the ground that "mere mental anxiety, unaccompanied with bodily injury or apprehended peril, does not afford a right of action." (Id. at pp. 677, 679, 44 P. 320.) The high court's answer to the contention was: The plaintiff wasn't suing for mere mental anxiety, but physical harm as well. "The real question presented by the objections and exception of the appellant is, whether the subsequent nervous disturbance of the plaintiff was a suffering of the body or of the mind. The interdependence of the mind and body is in many respects so close that it is impossible to distinguish their respective influence upon each other. It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism." (Id. at p. 680, 44 P. 320, emphasis added.)

    110

            The passage from Sloane, if read carefully, suggests that the Supreme Court casually accepted an almost "Cartesian" view that

    112

    Page 753

    114

            The other cases relied on in Air Crash Disaster Near Cerritos simply repeated the Sloane rationale. That is, these courts assumed that the trauma leading to the emotional distress caused some unspecified "nerve damage" or "shock to the nerves" which took the case out of the emotional and into the physical.

    116

            In Lindley v. Knowlton (1918) 179 Cal. 298, 176 P. 440, a 165 pound chimpanzee attacked the plaintiff's children. The plaintiff had to fight the [69 Cal.App.4th 664] chimpanzee off. (See id. at p. 299, 176 P. 440.) The defendant argued the injuries were solely mental (ibid.), which the court, quoting Sloane, rejected, reasoning that the " 'nerves and nerve centers of the body' " were " 'part of the physical system.' " (Lindley, supra, 179 Cal. at pp. 300-301, 176 P. 440, quoting Sloane, supra, 111 Cal. at p. 681, 44 P. 320.)

    118

            Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 4 P.2d 532 gave the same cursory treatment to the problem. There a truck collided with a street car, then smashed into the front of a building. A woman working on the mezzanine floor of the building experienced "an immediate nervous collapse," which then led to "continued extreme nervousness, headaches, sleeplessness, [and] loss of weight." (Id. at p. 184, 4 P.2d 532.) Most of the opinion centered on a physician who had examined the plaintiff but whom the defendant sought to have testify. In a short paragraph near the beginning (and in several paragraphs devoted to showing harmless error after the discussion involving the physician) the court simply assumed that the plaintiff's "physical condition" had been implicated (see id. at p. 184, 4 P.2d 532) because the "injury complained of was to the nervous system of respondent." (Id. at p. 187, 4 P.2d 532.)

    120

            Cook v. Maier (1939) 33 Cal.App.2d 581, 92 P.2d 434 followed the same suit. A car crashed into another, ran up onto a vacant lot, collided with a trash burner, then ran into a rock and board fence and the corner of plaintiff's house, causing debris to be thrown in the direction and " 'about the person' " of the plaintiff, who was on her way to the trash burner. (Id. at p. 582, 92 P.2d 434.) The court framed the question as whether "damages may be permitted for physical injuries as the result of fright and nervous shock, without bodily contact." (Id. at p. 584, 92 P.2d 434.) Against a premise that "[f]right alone is not an injury," the court juxtaposed the idea that there was "[s]omething more than mere fright" alleged. (Id. at p. 583, 92 P.2d 434, emphasis added.) And again, relying on Sloane, that "something more" was damage to the nervous system.

    122

            Ditto Vanoni v. Western Airlines (1967) 247 Cal.App.2d 793, 56 Cal.Rptr. 115. There a commercial airliner was being flown in such a manner (the opinion doesn't say exactly how) as to cause its passengers to fear it was going to crash. (Id. at p. 794, 56 Cal.Rptr. 115.) The court operated from the premise that "there can be no recovery for emotional distress or mental suffering unaccompanied by physical harm arising from acts which are solely negligent in nature" (id. at p. 795, 56 Cal.Rptr. 115), then set about--again via a quotation from Sloane (see id. at p. 796, 44 P. 320)--to decide the case on the ground that " 'shock' " created by the fear really was a "physical injury" as distinct from an emotional or mental one. (See id. at p. 797, 44 P. 320.)

    124

            [69 Cal.App.4th 665] Thus, when our Supreme Court had occasion, in Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, to describe Webb and Lindley, it said that they represented "physical injury as a result of the emotional trauma." (Id. at p. 651, 257 Cal.Rptr. 865, 771 P.2d 814, emphasis added.) The court might as well have said the same thing about Sloane, Cook and Vanoni.

    126

            If the rationale of the Sloane-Lindley-Webb-Cook-Vanoni cases seems strained, it is because it is, and the time has come to

    128

    Page 754

    13014132

            The point may be illustrated by reference to what one might think is the ordinarily prosaic world of insurance coverage law. For years, one of the great "recurring issues" in liability insurance coverage was whether the words "bodily injury" in a commercial general liability (CGL) insurance policy obligated an insurer to cover claims arising out of economic or business torts where the bodily injury claim was based on emotional distress. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 10, 44 Cal.Rptr.2d 370, 900 P.2d 619.) It is now settled that the words do not so obligate. Thus a company founder who was upset that he was forced out of the company he built (Waller, supra, 11 Cal.4th at p. 30, 44 Cal.Rptr.2d 370, 900 P.2d 619); investors, including many senior citizens, who lost their life saving in investment scams (Keating v. National Union Fire Ins. (9th Cir.1993) 995 F.2d 154, 156; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 13 Cal.Rptr.2d 318); and an employee who was left without health insurance when she got into an auto accident (Aim Insurance Co. v. Culcasi (1991) 229 [69 Cal.App.4th 666] Cal.App.3d 209, 280 Cal.Rptr. 766) were all held not to have stated claims for "bodily injury."

    134

            Yet can it be denied that people who have lost their economic hopes and security, or who are left in the lurch without health insurance and who are then injured in an accident are going to experience some "physical" manifestations of their emotional distress? Sleepless nights, heart palpitations, a horrible feeling in the pit of one's stomach--these are "bodily" phenomena if one were to take the words "bodily injury" with a dogged literality. Certainly one must experience "nervous shock" upon hearing that one's life savings have been sunk into a worthless investment. The point is, as the Molien decision alluded to, the "attempted distinction between physical and psychological injury" is artificial; one cannot extrapolate the "nervous shock" rationale into infinity or there will be no limits on liability. (See Molien, supra, 27 Cal.3d at pp. 929-930, 167 Cal.Rptr. 831, 616 P.2d 813.)

    136

            In short, there is no shortcut to analyzing the actual duty and the gravamen of the claim in each case. There are cases where "shock" is clearly not compensable and cases where maybe it should be. Teenagers have been known to get heart palpitations when their boyfriends or girlfriends leave them. On the other hand, pregnant women have been known to suffer miscarriages when they witnessed their spouses injured in a car crash (e.g., Reed v. Moore (1957) 156 Cal.App.2d 43, 319 P.2d 80.) The law obviously must differentiate between the two. 15

    138

    Page 755

    140

            Cases are not authority for propositions which they did not decide. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372, 20 Cal.Rptr.2d 330, 853 P.2d 496.) While the Sloane-Lindley-Webb-Cook-Vanoni line of cases equated emotional distress with "nervous shock" and nervous shock with the sort of palpable physical injuries that no one would question were recoverable, none of them ever considered the crucial question we have before us: The duty of an airplane operator vis-a-vis otherwise untouched bystanders for emotional [69 Cal.App.4th 667] distress, regardless of whether that emotional distress can be artificially characterized as "nervous shock." 16 Indeed, neither did the Ninth Circuit in Air Crash Disaster Near Cerritos. Rather, the Ninth Circuit simply assumed that because California courts had allowed, in Judge Rymer's words, recoveries "for emotional distress on account of reasonable fear for one's own safety," plaintiffs could recover. There was no consideration of the scope of duty of an airplane operator. 17

    142

            Ironically, the recent decision of Wooden v. Raveling, supra, 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 follows much the same pattern. The facts in Wooden are reminiscent of Webb, i.e., a car crash that comes onto the plaintiff's property and placed the plaintiff in fear of personal injury. (See Wooden, supra, 61 Cal.App.4th at p. 1036, 71 Cal.Rptr.2d 891.) Just as Sloane, Webb and Lindley were content to rebut the idea that the plaintiff was merely seeking emotional distress, Wooden rested its decision on rebutting the requirements articulated in Bro. The Wooden decision is essentially devoted to the idea that the requirements which the Bro court articulated for so-called "direct victim" liability for emotional distress damages are inconsistent with Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795. We will not now try to figure out which of the two cases represents the better view, which case is more consistent with Potter, or whether the two cases might be reconciled. We do not rest our decision on the Bro requirements.

    144

            It is enough, rather, simply to note two aspects of the Wooden decision which distinguish it from the case at hand. One, there is a difference between car crashes and airplane crashes as they relate to bystanders. Automobile drivers necessarily must be highly aware of the surrounding area and nearby property through which they drive. Freeways pose different risks than residential streets. Children might dart out into a narrow alley; one must drive slowly to avoid them. No such necessity attaches on a wide stretch of open highway in the desert.

    146

            The risk to bystanders is different in air travel. Most of the time, after all, when a plane is flying, the safety of bystanders on the ground is irrelevant [69 Cal.App.4th 668] from the point of view of the operators and owners of the plane. It is only relevant when a crash is otherwise inevitable.

    148

            Two, Wooden did not analyze the bystander's fear for her own safety in context of the seven factors which our high court has traditionally

    150

    Page 756

    152

            In sum, case law does not require imposition of a duty on operators of airlines to avoid the emotional trauma inherent in any crash to otherwise unhurt bystanders. We write on a clean slate.

    154

    Disposition

    156

            The judgment is affirmed.

    158

            BEDSWORTH, J., concurs.

    160

            SONENSHINE, J., Dissenting:

    163
    STANDARD OF REVIEW
    165

            This case comes to us after the trial court sustained the defendants' demurrers due to the plaintiffs' failure to state a cause of action. We therefore accept the allegations of the pleadings as true. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1223, 44 Cal.Rptr.2d 197.)

    167

    ALLEGATIONS CONTAINED WITHIN THE PLEADING

    169

            The plaintiffs' first amended complaint alleges: "The events giving rise to this cause of action occurred ... when a WESTWIND JET crashed while approaching for landing.... [p] ... Plaintiffs ... were at the time ... employed by ... a car dealership .... [p] ... and ... present [there when they] ... [p] ... observed the ... JET begin to descend, falling out of the sky. The plaintiffs watched the WESTWIND JET crash into the ground. Prior to the ... crash[ ], the plaintiffs were fearful ... the ... JET, or parts of it, would land on them and cause them serious injury. [p] ... Plaintiffs watched the ... JET explode and, in fact, felt the force and heat of the explosion, the force of which caused them to be thrown forward as they ran from the scene of the crash. The plaintiffs also feared that they might be further harmed by the force and/or heat of the explosion as well as debris flying from the explosion site." The complaint further alleges, "As a proximate result ..., plaintiffs suffered serious, substantial and enduring mental anguish and emotional distress which injured their health, strength and [69 Cal.App.4th 669] activity, sustaining injury to their body and shock and injury to their psyche and person, all of which said injuries have caused and continue to cause plaintiffs great mental and physical pain and suffering. [p] ... As a further proximate result of the negligence and carelessness of defendants, and each of them, plaintiff has incurred and will continue to incur, medical expense and costs of drugs and supplies.... [p] ... At the time of said injury, plaintiffs were employable and as a proximate result of said conduct of the defendant(s), and each of them, and by reason of the injuries suffered by plaintiffs, they were prevented from being employed, thereby losing earnings. Plaintiffs are informed and believe, and thereon allege, that they will continue to be prevented from attending to their occupations for a period in the future, and will thereby lose future earnings."

    171

    THE ALLEGATIONS STATE A CAUSE OF ACTION

    173

            The majority concludes the plaintiffs failed to state a cause of action because California does not recognize emotional distress damages for airplane crash spectators who suffer no physical harm. 1 My colleagues fail to appreciate the controlling law.

    175

            Over 100 years ago, our Supreme Court recognized, "A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril." (BAJI No. 12.81, italics added; see Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 682-683, 44 P. 320.)

    177

    Page 757

    179

            Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 4 P.2d 532 is instructive. There, our Supreme Court held a plaintiff could recover emotional distress damages after witnessing a truck crash into [69 Cal.App.4th 670] the building in which she was standing. The court noted the truck did not hit the plaintiff but she nevertheless was injured because she reasonably feared for her own safety. (See also Cook v. Maier (1939) 33 Cal.App.2d 581, 92 P.2d 434.)

    181

            The Supreme Court has not addressed the precise issue we consider--may an airplane crash witness recover for emotional distress damages relating solely to fear for personal safety? However, the Ninth Circuit in In re Air Crash Disaster Near Cerritos, Cal. (1992) 973 F.2d 1490 went one step further. There, the plaintiffs alleged they "were inside the bedroom of their home when they heard two sounds like sonic booms...." (Id. at p. 1494, italics added (dis. opn. of Rymer, C.J.).) They maintained they suffered severe and lasting emotional distress, fright and shock as a result of fear for their own safety. The district court dismissed the complaint, finding it failed to state a cause of action under California law. Relying on Webb and Cook, the Ninth Circuit reversed, holding California law "quite clearly [suggests plaintiffs] ... have stated a valid claim." (Id. at p. 1491.)

    183

            Cerritos is noteworthy for two reasons. First, of course, the majority held the plaintiffs could recover emotional distress damages after merely hearing a crash. Second, even the dissent acknowledged California law would allow recovery if the plaintiffs had seen the crash. (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at pp. 1494-1495.) The dissenting judge parted company with her colleagues only because, as she explained, the cases upon which the majority relied do not extend to plaintiffs who "were unaware of the injury-causing event that threatened their safety. [p] ... [p] ... [P]laintiffs who may recover on account of fear for their own safety will have appreciated why they are in danger." (Id. at p. 1496.)

    186
    THE MAJORITY OPINION
    188

            The Supreme Court says a car crash spectator can recover emotional distress damages. The Ninth Circuit says plaintiffs can recover if they are emotionally distressed after hearing a plane crash.

    190

            Why do my colleagues conclude these plaintiffs cannot recover? The majority sees a difference between car crash and airplane disaster witnesses. They say those who operate a car must be more "aware of the surrounding area and nearby property" because "[t]he risk to bystanders is different...." (Maj. opn., ante, p. 755.) Moreover, they say the standard is different because while results of airplane crashes are worse than car crashes, airplane operators should be held to a lower standard of care [69 Cal.App.4th 671] because pilot's negligence is "at worst, negligence in light of a very high standard of required performance--rather than any kind of moral indifference to the possibility of injury." (Maj. opn., ante, p. 750.) I fail to appreciate their distinction.

    192

            Simply stated my brethren are unimpressed with California Supreme Court authority, suggesting the high court should rethink its position and recognize its rationale is "strained" because it "assume[s] that the trauma leading to the emotional distress caused some unspecified 'nerve damage' or 'shock to the nerves' which took the case out of the emotional and into the physical." (Maj. opn., ante, pp. 752-753.) And, they find the Ninth Circuit just plain wrong. "With due respect to the Ninth Circuit, we must disagree ... California tort case law [does not permit] emotional distress damages ... whenever one reasonably fears for one's own safety...." (Id. at p. 751, original italics.)

    194

    Page 758

    196

            When cleansed of its fictional and historical rhetoric, the majority opinion affirms the trial court's sustaining of the demurrer because the justices reject what they label the "loosey-goosey" concept of emotional distress. (Maj. opn., ante, p. 749). Actually, my brethren are just unimpressed with "weak" people. As they say, "[T]ort law cannot countenance [an] ... 'eggshell psyche.' " 2 (Ibid.) If they had their way, we would all be certified war heroes. We certainly would not reward those who succumb to fear as a result of someone else's negligence.

    198

            My colleagues miss the point. Their feelings about emotional distress damages are irrelevant. The Supreme Court sets the standard we are to follow. I would reverse the granting of the demurrer and permit the trier of fact to decide if the defendants were negligent and, if so, whether the plaintiffs were damaged as a result.

    200

    ---------------

    202 203

    1 The defendants' motion to strike the reply brief as containing facts not in record is hereby denied as moot. Our facts are taken from the complaint, not the reply brief.

    205

    2 The Air Crash Disaster court categorized the case as a "direct victim" one. (See Air Crash Disaster, supra, 973 F.2d at p. 1494.) There is thus no way that it can be reconciled with Bro. Fortunately for us, and as we explain below, we need not attempt to reconcile the two cases. We do not rest our result on simply assigning the plaintiffs' claim to the "direct victim" category.

    207

    3 Perhaps--but only perhaps--the very attempt to articulate one set of consistent common law general rules in the area is a grail which will never be found. Time will tell.

    209

    4 Notwithstanding Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813. Molien has become the Marie Celeste of emotional distress law: It is an empty vessel, but not yet sunk. While not overruled, its discussion of duty has been limited to its own facts. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

    211

    5 While plaintiffs may have felt some heat, wind and vibration in the few moments before the crash, it would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash.

    213

    6 The story is in the Titwillow song near the end of the operetta.

    215

    7 Cf. Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, 1989 Jun. Army L. 17, 17 (noting that "most people" do not develop post-traumatic stress disorder after extremely traumatic events).

    217

    8 For example, see People v. Lockett (Sup.1983) 121 Misc.2d 549, 468 N.Y.S.2d 802, in which the court accepted a plea bargain in a criminal case based on the defendant not being responsible because he was suffering from post-traumatic stress disorder (PTSD) induced by his service in Vietnam while he was in the Air Force. When his Air Force file was examined it turned out that he had never been in Vietnam. (See id. at pp. 803-804.) See also Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, 1989 Jun. Army L. 17, 19 ("The ease with which a savvy defendant can fake PTSD symptoms has been recognized by medical researchers, and there are documented instances in which a defendant's plan to fake PTSD to avoid conviction was frustrated only by his own indiscretion.").

    219

    9 See Shea, Solving America's General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform (1995) 80 Cornell L.Rev. 747, 749 ("General aviation is one of the most intensely regulated industries in the United States. Since its enactment of the Federal Aviation Act of 1958, Congress has regulated nearly every aspect of the manufacture and operation of general aviation aircraft for the purpose of ensuring 'the highest degree of safety.' "). The "crisis" in the title refers to the strains on American aircraft manufacturers created by conflicts between state tort law and federal regulations.

    221

    10 See id. at p. 1496 (dis. opn. of Rymer, J.) (making the point that no California case had "gone so far" as to allow emotional distress recovery "when the causal link between the event and the threatened injury is not contemporaneously comprehended").

    223

    11 Breathes there a soul who has not witnessed an accident or two over the past few years? Or at least had a driver come speeding up from behind and momentarily worried that a crash was imminent? The bottom line of our dissenting colleague's analysis is that all witnesses to an accident who momentarily fear for their safety but who otherwise escape--indeed, those who fear for their safety even when there is no accident but merely a close call--may sue the wrongdoer for money as compensation for emotional distress. Wow! If this were the law, insurance premiums would skyrocket and the courts would groan from the sheer weight of litigation. The ultimate lawyers' paradise would have arrived: everyone would be suing everyone.

    225

    12 This is hardly esoteric stuff. The law reviews are full of it. Plug in "mind" "body" "Plato" and "dualism" in just the same sentence into a law review data base and you will find no less than 74 documents. (E.g., Barresi, Advocacy, Frame, and the Intergenerational Imperative: A Reply to Professor Weiss on "Beyond Fairness to Future Generations" (1998) 11 Tul. Envtl. L.J. 425, 428 (reference to "Cartesian dualism, the tendency inherent in Western thought to erect a philosophical barrier between mind and body, between matter and spirit, and between the physical world and the intellectual one"); Miller, DNA Blueprints, Personhood, and Genetic Privacy (1998) 8 Health Matrix: J. of Law-Medicine 179, 190-191 (contrasting views of Aristotle, Descartes and Hume on the self); Sells, Saving Icarus (1998) 23 Feb. Mont. Law. 1, 25 (reference to "the tired dualism of matter and spirit"); Smith, Machine Intelligence and Legal Reasoning (1998) 73 Chi.-Kent L.Rev. 277, 279 ("Descartes' error was in concluding that intelligence can exist independently of the human body"); Handsley, Mental Injury Occasioned by Harm to Another: A Feminist Critique (1996) 14 Law & Ineq. 391, 487 fn. 333 ("Liberal philosophy also rested on the 'metaphysical dualism' of the mind-body split.").

    227

    13 Justice Puglia opined in Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8, 4 Cal.Rptr.2d 87 that the "disparate" body of cases dealing with emotional distress damages is not really amenable to a " 'tight, coherent, conceptual scheme.' " The difficulty of the philosophical problem provides a clue as to why it has been so difficult for the courts to propound a unified legal theory when it comes to emotional distress--why, for example, some of the opinions seem to labor (e.g., "Justice Spencer agonized as she worked through an exhaustive discussion of the authorities" (Bro, supra, 22 Cal.App.4th at p. 1419, 27 Cal.Rptr.2d 894, referring to Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 276 Cal.Rptr. 470)) in the area. When the core issue is one over which some of the finest minds in human intellectual history have disagreed (e.g., Descartes and Hume), jurists are not necessarily going to have an easy time of it either.

    229

    14 For example, in the case before us, an employee sitting in an isolated and soundproof conference room might have been wholly oblivious to the impending crash. For those who became aware of the impending crash, the shock value depended on the brain to interpret certain stimuli as possible impending death.

    231

    15 Which is not to say that even in the latter situation the courts have had an easy time of being consistent. Reed actually held that the woman could not recover because the negligent act was not "directed at" her, but at her husband, which is how the Court of Appeal distinguished Sloane. (Reed, supra, 156 Cal.App.2d at p. 45, 319 P.2d 80.) But then again, as Justice Peters noted in his dissent in Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 318, 29 Cal.Rptr. 33, 379 P.2d 513, the facts in Amaya (mother witnessed truck run over her boy) were "very close" to Reed, which also held there could be no recovery, yet Amaya was overruled by Dillon v. Legg (1968) 68 Cal.2d 728, 748, 69 Cal.Rptr. 72, 441 P.2d 912 (mother witnessed child killed by negligent driver). Fortunately, the present case can be dealt with without proposing a grand scheme trying to reconcile everything that the Supreme Court and various panels of the Court of Appeal have ever written on the subject.

    233

    16 Thus our decision today might be different if the plaintiffs had all suffered heart attacks. However, we need not address the problem of whether a "hard" or palpable phenomenon, like a heart attack, brought on in a bystander to a plane crash by fear of being hurt in a plane crash, is recoverable. We need only note that the number of otherwise untouched bystanders who suffer heart attacks as a result of the fear of being hurt in a plane crash is going to be far fewer than the number of otherwise untouched bystanders who, as in the present case, really suffer only fear itself.

    235

    17 Our dissenting colleague acknowledges that the 1896 Sloane decision is not "precisely" on point, but extrapolates the principle of liability on which that decision was based into an inflexible rule which mandates liability for mere fear any time there is negligent conduct. As we have already indicated, that broad idea is untenable in the light of what our high court has said in the hundred years since that venerable case.

    237

    1 My brethren acknowledge the plaintiffs "may have felt some heat, wind and vibration in the few minutes before the crash," but explain, "[I]t would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash." (Maj. opn., ante, p. ----, fn. 5.) But we must accept as true all of the allegations contained in the complaint. The plaintiffs claim their injuries resulted from fear the plane would crash on them and from the heat, wind and vibration. In any event, standing alone, the allegation of fear from imminent peril is sufficient to state a cause of action for emotional distress damages.

    239

    2 The majority has turned this doctrine on its ear. As every first-year law student learns, tortfeasors take their victims as they find them. (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 292 [defendant liable for death of plaintiff, even though normal victim would have suffered only a bump on the head]; see also Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at p. 683, 44 P. 320 ["Whether the defendant ... knew of (the plaintiff's) susceptibility to nervous disturbance was immaterial"].)

  • 7 Emotional Harm: Quill v. Trans World Airlines

    Dean Abrahamson and three others brought this action for the emotional distress he allegedly suffered while a passenger on TWA’s Boeing 727, which plunged more than 30,000 feet in an uncontrolled tailspin. The jury found that the plaintiffs suffered $50,000.00 in damages, and the court upheld the verdict.

    2

    Page 438

    5
    361 N.W.2d 438

    8
    Thomas QUILL, et al., Plaintiffs,
    Dean Abrahamson, Respondent,
    v.
    TRANS WORLD AIRLINES, INC., Appellant.

    11
    No. C8-84-1325.

    14
    Court of Appeals of Minnesota.

    17
    Jan. 29, 1985.
    Review Denied April 18, 1985.
    19

    Page 439

    22
    Syllabus by the Court
    24

            1. A passenger in a commercial airliner which dove 34,000 feet in an uncontrolled tailspin presented a prima facie case of negligent infliction of emotional distress.

    26

            2. The trial court did not abuse its discretion under the circumstances of this case when it refused to inform the jury that a co-defendant had settled.

    28

            3. Admission of evidence on damage to the commercial airliner caused by its uncontrolled dive was not an abuse of discretion when the evidence had probative value on the plaintiffs' claims for injuries and did not clearly prejudice defendant.

    30

            4. This court will not review defendant's claim that the trial court erred by consolidating plaintiff's claim with those of other passengers on the airplane when defendant did not state that ground in its motion for a new trial.

    32

            5. The trial court did not abuse its discretion by excluding expert testimony on plaintiff's emotional distress damages when defendant failed to notify the court or plaintiff that it intended to introduce the testimony until less than one week before trial.

    34

            6. Plaintiff did not testify as a medical expert when he testified he examined medical literature to diagnose his problems, but did not testify that he made a diagnosis.

    36

            7. Plaintiff's attorney's closing argument was not so improper and prejudicial that the trial court abused its discretion by failing to act on its own motion when defendant did not object or request a curative instruction.

    38

    Page 440

    40

            James R. Schwebel, Diane C. Hanson, Schwebel, Goetz, Sieben & Hanson, P.A., Minneapolis, for respondent.

    42

            Donald Chance Mark, Jr., Gayle Hendley-Zappia, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp, & Brennan, Minneapolis, for appellant.

    44

            Heard, considered and decided by LESLIE, P.J., and WOZNIAK and LANSING, JJ.

    47
    OPINION
    49

            LESLIE, Judge.

    51

            Plaintiff Dean Abrahamson brought this action for the emotional distress he allegedly suffered while a passenger on appellant-defendant TWA's Boeing 727. Trial on the issue of liability for plaintiff's claim and those of other passengers on the jet began on May 10, 1983. A jury found TWA 70% causally negligent and co-defendant The Boeing Company 30% causally negligent.

    53

            Plaintiff's claim for damages and those damage claims of three other passengers/plaintiffs were consolidated for trial. Before trial The Boeing Company was dismissed as a defendant when it entered a Pierringer release with the plaintiffs. The jury found plaintiff suffered $50,000.00 in damages. The jury found plaintiff suffered $50,000.00 in damages. TWA moved for judgment notwithstanding the verdict or, alternatively, for a new trial on plaintiff's damage claim. The trial court denied those motions and TWA appealed from entry of judgment.

    56
    FACTS
    58

            On April 4, 1979, TWA flight 841 from New York to Minneapolis was cruising at an altitude of 39,000 feet when it suddenly rolled over and plunged downward. Its tailspin continued for the next 40 seconds at speeds just below the speed of sound, causing the plane to violently shake. At approximately 5,000 feet the pilots regained control of the plane, about 5 seconds before it would have struck ground. The force exerted on the plane and the passengers equalled approximately 6 G's. Testimony indicated that force wrinkled the fuselage skin of the aircraft and bent its wings.

    60

            Plaintiff is a medical doctor who does not practice; he teaches and consults on nuclear energy and environmental policy issues. He is 48 years old and married. His work requires him to make approximately 20 business trips per year, involving about 60 flights. On this flight he was returning to Minneapolis from Europe via New York. When the plane rolled over and started its accelerating dive, he believed that his death was certain. He testified that the G force was so strong that he could not lift his arm to reach the oxygen masks which had shaken loose. Plaintiff believed even if the child in the seat next to him had been screaming he could not have heard over the incredible noise generated.

    62

            When the airliner pulled out of the tailspin, it continued to shake and make unusual noises, but much less than during the dive. The cabin crew picked up some of the trays and articles in the aisles and instructed the passengers on emergency procedures. One stewardess pulled all the pillows and soft articles from the overhead lockers which she gave to the passengers to use, instructing them to assume the emergency landing position. The pilot informed the passengers over the intercom that they had experienced some problems and that they would make an emergency landing in Detroit, Michigan. The flight crew, however, did not explain the problem, indicate the condition of the plane, or assure the passengers that they would land safely.

    64

            During the next forty minutes the plane continued to shake and make considerable noise. The plane made one low pass over the Detroit airfield so that ground personnel could determine if the landing gear had lowered. Plaintiff testified that he could see the emergency vehicles by the runway, waiting for the landing. The plane then landed safely, but at a higher speed than normal.

    66

    Page 441

    68

            Since the incident, plaintiff has continued to fly for business purposes. On about 50 percent of the flights he experiences anxiety and recalls his feelings that night. His anxiety is often triggered by sudden changes in an aircraft's direction. Plaintiff's fear manifests itself physically in adrenaline surges, sweaty hands, elevated pulse and blood pressure. In a few instances plaintiff has not been able to take his scheduled flight, because of his concerns, and has taken a later plane instead. His wife says it sometimes takes him two days to relax after a flight. Plaintiff has not consulted any medical professionals about his problem because, as a doctor, he believes they could do nothing for him.

    71
    ISSUES
    73

            1. Did plaintiff present a prima facie case for negligent infliction of emotional distress?

    75

            2. Did the trial court properly refuse to notify the jury that a co-defendant had settled when plaintiff submitted deposition testimony of the co-defendant's employee?

    77

            3. Did the trial court improperly allow evidence on the damage to the airplane and on the cost of repairing the airplane?

    79

            4. Did the consolidation for trial on damages of plaintiff's claim with other plaintiff's claims constitute an abuse of discretion?

    81

            5. Did the trial court abuse its discretion by excluding testimony of defendant's expert witness for lack of timely notice?

    83

            6. Was plaintiff's testimony on his symptoms and on his investigation of medical literature "expert medical testimony" that should have been disclosed prior to trial?

    85

            7. Was plaintiff's attorney's closing argument so improper and prejudicial that the trial court should have acted on its own motion?

    88
    ANALYSIS
    90

    1. Negligent Infliction of Emotional Distress

    92

            The primary issue on appeal is the merit of plaintiff's case for damages for emotional distress. Defendant TWA claims that plaintiff's injuries are not compensable as a matter of law.

    94

            The seminal Minnesota case on negligent infliction of emotional distress is Purcell v. St. Paul City Railway, 48 Minn. 134, 50 N.W. 1034 (1892). In Purcell a pregnant woman was severely frightened when the cable car she was riding in nearly collided with another cable car. Her fear caused her to convulse violently, leading her to miscarry her child. She sued for damages for her miscarriage, alleging the railway company negligently caused the near collision. The supreme court said:

    96

    The mind and body operate reciprocally on each other. Physical injury or illness sometimes causes mental disease. A mental shock or disturbance sometimes causes injury or illness of body, especially of the nervous system. Now, if the fright was the natural consequence of--was brought about, caused by--the circumstances of peril and alarm in which defendant's negligence placed plaintiff, and the fright caused the nervous shock and convulsions and consequent illness, the negligence was the proximate cause of those injuries. That a mental condition or operation on the part of the one injured comes between the negligence and injury does not necessarily break the required sequence of intermediate causes.

    98

            Id. at 138, 50 N.W. at 1035.

    100

            Later cases have modified the rules for recovery of damages for emotional distress. In cases like the present one where the plaintiff did not suffer a contemporaneous physical injury, the "zone of danger" rule applies. Stadler v. Cross, 295 N.W.2d 552, 555 (Minn.1980). In Langeland v. Farmers State Bank, 319 N.W.2d 26 (Minn.1982) the supreme court wrote:

    102

    [T]he general rule regarding the negligent infliction of emotional distress has been that there can be no recovery absent some accompanying physical injury. See W. Prosser, Handbook of the Law of

    104

    Page 442

    106

            Id. at 31.

    108

            The Minnesota cases establish that damages for emotional distress are compensable under the zone of danger rule, but leave unanswered the narrower question raised here: How severely must the emotional distress physically manifest itself before the law will provide a remedy under the zone of danger theory?

    110

            Two Minnesota cases allowing recovery for emotional distress fit squarely under the zone of danger rule: Purcell and Okrina v. Midwestern Corp., 282 Minn. 400, 165 N.W.2d 259 (1969). In Okrina a wall of the store in which plaintiff was shopping collapsed making a thunderous noise. Plaintiff was afraid the whole building would collapse but she escaped without being struck by any debris. Following the incident she felt numb and sought hospital care. She spent five days receiving treatment for severe pain in her head, back and leg. Her doctor testified that her condition resulted from her fright, that her personality had been altered, and that it was unlikely she would improve. The court said:

    112

    Here, there was a physical injury sustained as a result of Mrs. Okrina's fear and not merely mental anguish unaccompanied by symptoms of physical suffering * * *

    114

            Id. at 404, 165 N.W.2d at 262.

    116

            The symptoms of physical suffering of the plaintiffs in Okrina and Purcell evidently met the undelineated threshold. While plaintiff Abrahamson's physical symptoms are not so severe, nothing in those cases suggests Abrahamson's injuries are not serious enough to warrant recovery.

    118

            TWA argues a recent decision should guide our analysis. In Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn.1983) the Minnesota Supreme Court recognized for the first time the independent tort of intentional infliction of emotional distress. Hubbard ended a long period in Minnesota law where damages for emotional distress could only be recovered under the negligence theory outlined above, or under a "parasitic tort" theory. See Note, Minnesota's "New Tort": Intentional Infliction of Emotional Distress, 10 Wm. Mitchell L.Rev. 349 (1984) (recovery was parasitic because the emotional suffering must have arisen out of an "host" tort such as assault or mistreatment of a corpse).

    120

            The supreme court adopted the Restatement formulation of the tort requiring four elements: (1) extreme and outrageous conduct which is (2) reckless or intentional (3) causing (4) severe emotional distress. Hubbard, 330 N.W.2d at 438-39; Restatement (Second) of Torts § 46(1) (1965). The court stated:

    122

    Although our support of the policy of protecting the judicial process from trivial and speculative claims by restricting tort recoveries for mental distress is undiminished, we no longer feel that a rule requiring physical injury or an underlying tort is the most effective way to promote this policy. Rather, it is the view of this court that the problems inherent in allowing recoveries for mental and emotional disturbances can be more clearly and adequately addressed if intentional infliction of emotional distress is recognized as a separate and independent tort.

    124

            Hubbard, 330 N.W.2d at 438.

    126

            TWA claims that a plaintiff under the negligent infliction of emotional distress theory must meet Hubbard 's demanding burden of severe emotional distress. It is doubtful that plaintiff Abrahamson's injuries meet the Hubbard standard for he never sought medical care, a factor of obvious importance to the supreme court. See id. at 440; Langeland, 319 N.W.2d at 29.

    128

    Page 443

    130

            We need not decide that question, however, for we decide that the Hubbard standard does not apply to negligent infliction of emotional distress cases. First, the supreme court did not state the independent tort of intentional infliction of emotional distress displaced all other torts in which damages for emotional distress had been allowed. Second, cases decided as recently as Langeland refer to physical symptoms without suggesting plaintiffs must meet the high threshold adopted in Hubbard. Minnesota law has long separated the two emotional distress torts, not recognizing one until 90 years after adopting the other. We see little basis for borrowing an element from one to add to the other, particularly when the zone of danger rule provides an indicia of genuineness the intentional tort requirements lack.

    132

            Our issue remains whether plaintiff has satisfied the physical injury or symptom requirement. This requirement is a judicial obstacle designed to insure a plaintiff's claim is real. See Restatement (Second) of Torts, § 436A, com. b. (1965). Our task is problematic for no clear line can be drawn between mental and physical injury. Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237, 1241 (1971). Cases taking varying positions on what meets the physical injury requirement illustrate the difficulty. See Bowman v. Williams, 164 Md. 397, 404, 165 A. 182, 184 (1933) (weakness and nervousness sufficient physical symptoms); Cosgrove v. Beymer, 244 F.Supp. 824, 826 (D.Del.1965) (dizziness, mild headaches and nervousness insufficient symptoms of bodily harm). See also Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970) (majority and dissenting views on what constitutes physical injury). The problem has lead some jurisdictions to abandon altogether the physical injury or symptom requirement which Minnesota continues to employ. Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 928, 616 P.2d 813, 820, 167 Cal.Rptr. 831, 838 (1980); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 679 (1979); Leon v. Takasaki, 55 Hawaii 398, 403, 520 P.2d 758, 767 (1974).

    134

            Although plaintiff's symptoms are less severe than those in Okrina and Purcell, we hold under the circumstances of this case that he has stated a prima facie case. The trial court upheld the jury's verdict finding that the "unique nature of the accident in this case [resolves] all doubts of the genuineness of the claim." This reasoning accords with Prosser's discussion of two types of cases allowing recovery for emotional distress without physical injury:

    136

    What all of these cases appear to have in common is an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. There may perhaps be other such cases. Where the guarantee can be found, and the mental distress is undoubtedly real and serious, there is no essential reason to deny recovery. But cases will obviously be rare in which "mental anguish," not so severe as to cause physical harm, will be so clearly a serious wrong worthy of redress, or sufficiently attested by the circumstances of the case.

    138

            Prosser, § 54, at 328.

    140

            This case does not fit in one of Prosser's recognized categories, but we believe the unusually disturbing experience plaintiff endured combined with his physical symptoms assure that his claim is real. There can be few experiences as terrifying as being pinned to a seat by gravity forces as an airplane twists and screams toward earth at just under the speed of sound. The nature of that experience guarantees plaintiff suffered severe emotional distress during the descent and the emergency detour to Detroit. This conclusion is supported by the suffering of many others who shared his experience. Plaintiff's recurring distress is no doubt genuine as well. His sweaty hands, elevated blood pressure and other signs of distress provide, in this case, sufficient physical symptoms to warrant the law's recognition of his claim. Therefore we hold that the law

    142

    Page 444

    144

    2. Failure to Notify the Jury of Settlement

    146

            Following trial on TWA's and Boeing's liability, the trial court consolidated plaintiff's claim with three other plaintiffs for trial on damages. Boeing then negotiated a settlement with the four plaintiffs and executed a Pierringer release and settlement. Before trial TWA requested that the court notify the jury selected for the damages trial that Boeing had been a party to the lawsuit but had settled plaintiff's claims. TWA claims that the court's refusal to inform the jury prejudiced its case because the testimony of a Boeing metallurgist, Robert Davis, was introduced at trial.

    148

            TWA relies upon Frey v. Snelgrove, 269 N.W.2d 918 (Minn.1978). In Frey the supreme court set out guidelines for trial courts to follow when only one of multiple defendants settle. One guideline provides:

    150

            Where the settlement and release agreement is executed during trial, the court should usually inform the jury that "there has been a settlement and release if for no other reason than to explain the settling tortfeasor's conspicuous absence from the court room."

    152

            Id. at 923, quoting from Simonett, Release of Joint Tortfeasors: Use of the Pierringer Release in Minnesota, 3 Wm. Mitchell L.Rev. 1, 30 (1977). While notifying the jury may be the best general practice, the decision lies within the trial court's discretion:

    154

    The extent to which a settlement should be disclosed to the jury will vary from case to case and must rest in the sound discretion of the trial court. The goal, of course, must always be to preserve the remaining parties' right to a fair trial under the circumstances.

    156

            Frey, 269 N.W.2d at 922 (emphasis supplied).

    158

            TWA apparently claims introduction of Boeing's employee Davis' testimony without notifying the jury of Boeing's settlement caused it prejudice. We fail to see how TWA could have been prejudiced. Unlike the Frey case, the only issue at trial was plaintiff's damages. The comparative liability of the defendants had already been established. Further, Robert Davis' testimony was offered by way of a deposition taken months before the settlement. We require a more substantial showing of prejudice before ordering a new trial.

    160

    3. Evidence of Damage to the Airplane

    162

            TWA also claims that Robert Davis' testimony was irrelevant and prejudicial and should not have been admitted. Davis testified on the damages caused to the airplane and the cost of repairing it. Plaintiffs also introduced a videotape and photographs taken of the damaged airplane. Plaintiffs intended this evidence to indicate the severity of the force exerted on the passengers so the jury might better understand the experience and understand how other plaintiffs in the trial could have suffered physical injury.

    164

            Evidence which is both relevant and prejudicial should be admitted only after balancing the two under Minn.R.Evid. 403. A determination of this question is within the trial court's discretion. Lines v. Ryan, 272 N.W.2d 896, 902 (Minn.1978). Since we find the evidence on the condition of the airplane following the incident could assist the jury to understand the conditions its passengers experienced and we find any prejudice thereby caused to TWA speculative, we cannot conclude that the trial court abused its discretion.

    166

    4. Consolidation of the Plaintiff's Claims

    168

            TWA argues that plaintiff's claim for emotional distress should not have been consolidated with other plaintiffs' claims for both emotional distress and physical injury. TWA, however, failed to object to consolidation or to raise the alleged error in its post trial motions. Since a consolidation order is a matter involving trial procedure

    170

    Page 445

    172

    5. Exclusion of TWA's Expert Testimony

    174

            On November 23, 1983, the day before Thanksgiving and only five days before the date of trial, TWA served its statement of the case on plaintiff indicating its intent to call Dr. Walter Duffy, an expert on flying phobias. The morning of trial plaintiff moved to exclude Duffy's testimony because it was not timely disclosed. The trial court granted plaintiff's motion.

    176

            The trial court was assigned all Hennepin County District Court cases arising out of the TWA flight 841 incident. On December 14, 1982, the court notified all parties that they should disclose all expert witnesses by February 1, 1983. The notice informed the parties that failure to disclose would result in exclusion. Plaintiff did not serve expert interrogatories upon TWA.

    178

            TWA argues that the December 1982 order did not govern this trial, but instead governed only earlier trials on the liability issue. It also points out that numerous other pretrial matters were only completed by plaintiffs the morning of trial and that plaintiff never filed a statement of case. In sum, TWA complains it was treated unfairly, since the trial court gave special consideration to plaintiffs but handled TWA with uncompromising sternness. TWA also claims it did not retain Dr. Duffy until one week before trial, when settlement attempts failed. Apparently such expertise had not been needed in any earlier trials since plaintiff Abrahamson was the only plaintiff with a pure emotional distress claim.

    180

            When a party seeks to introduce expert testimony not previously noticed, determination of the appropriate remedy is within the trial court's discretion. Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390, 394 (Minn.1977); In re Estate of Olsen, 357 N.W.2d 407, 413 (Minn.Ct.App.1984).

    182

            In this case we cannot find the trial court abused its discretion. It properly ordered early disclosure of witnesses and certain other evidence to enable it to effectively oversee the multiple and complex cases to be tried before it. While the terms of the order can be interpreted to apply only to the liability portion of the trial, it can also be interpreted to apply to all aspects of the trial. TWA cannot complain that it only realized its need for the expert testimony when, one week before trial, settlement attempts failed. Nor can it complain it was unfairly treated because plaintiffs indicated on the morning of the damages trial its intent to use certain evidence and exhibits when the record indicates those items were introduced in the earlier liability trial and were thus known to all parties and the court. Notwithstanding our refusal to order a new trial for abuse of discretion, allowing a continuance is the preferred solution for this problem. Exclusion is a harsh sanction which trial courts should use with restraint.

    184

    6. Plaintiff's Testimony as an Expert

    186

            TWA argues that plaintiff was allowed to testify as a medical expert even though TWA's own expert was precluded from testifying. Plaintiff, a doctor, was only allowed to testify that he examined medical literature for a psychiatric diagnosis. TWA's objections to questions asking if he had made a diagnosis were sustained by the trial court. Accordingly, plaintiff did not give an expert opinion and admission of his testimony does not entitle TWA to a new trial.

    188

    7. Improper Final Argument

    190

            TWA argues that plaintiff's attorney used improper arguments during his summation. TWA attacks three metaphors which counsel used in his attempt to describe plaintiff's emotional distress:

    192

            It occurred to me that when the Nazis chose to get information from someone, they didn't take his property away from him, they didn't put a cigarette out on

    194

    Page 446

    196

            When you think of what happened to [plaintiff] on that plane knowing he was dead, is it any different than if someone is to take a gun and put a bullet in that gun and point it at the side of your head and pull the trigger, and that gun misfires, it goes click? Imagine that being done to you 40 times, 40 seconds, each time you are certain you are going to die. That's what mental anguish is. That's what happened on that airplane to those people, and they are remarkable people.

    198

            They remind me, the strength that they demonstrate on the witness stand, in some respect of the strength that we saw from our airmen that had been in prisoners of war camps in North Vietnam * * *

    200

            TWA also attacks a portion of counsel's summation where he asked the jury to consider the amount of money they would demand before agreeing to take a similar flight.

    202

            When a proper objection to closing argument is made, the determination of impropriety is within the trial court's discretion. Bisbee v. Ruppert, 306 Minn. 39, 47, 235 N.W.2d 364, 370 (1975). Normally prejudicial argument can be corrected by a curative instruction. Id. Accordingly, a request for a curative instruction is generally needed to establish a basis for requesting a new trial. Id. at 48, 235 N.W.2d at 370. In Bisbee the court said: "In the absence of such a request, we will not require a new trial despite the absence of specific curative instructions, for this is not the rare case where counsel's conduct is so egregious as to require the trial court to give curative instructions on its own motion." Id. at 48, 235 N.W.2d at 370-71 (footnote omitted). "A party is not permitted to remain silent, gamble on the outcome, and, having lost, then for the first time claim misconduct in opposing counsel's argument." Patton v. Minneapolis Street Railway, 247 Minn. 368, 375, 77 N.W.2d 433, 438 (1956).

    204

            We agree with TWA that counsel's closing argument was improper. In particular, the argument improperly suggests that the jury put itself in the place of plaintiff. See Lamont v. Independent School District No. 395 of Waterville, 278 Minn. 291, 295, 154 N.W.2d 188, 191-192 (1967). TWA, however, did not timely object to the closing argument nor request a curative instruction. We do not agree that the argument was so improper and prejudicial that the trial court abused its discretion by failing to intervene on its own motion to admonish counsel. Accordingly, we affirm the trial court's refusal to grant a new trial on this ground.

    207
    DECISION
    209

            Plaintiff established a prima facie case of negligent infliction of emotional distress. Accordingly, the trial court properly denied defendant TWA's motion for judgment notwithstanding the verdict. The trial court properly denied TWA's motion for a new trial on the grounds discussed above.

    211

            Affirmed.

  • 8 Emotional Harm: Shatkin v. McDonnell Douglas Corp.

    This is one of a pair of cases (to be read with Shu-Tao Lin v. McDonnell Douglas Corp.) where the recovery of passenger/plaintiff for pre-impact flight in an airplane crash was dependent upon seating arrangement on the plane (and the resulting awareness of the inevitable impact).

    1

    MANSFIELD, Circuit Judge:

    2

    Defendants American Airlines, Inc. (American) and McDonnell Douglas Corporation (McDonnell Douglas) appeal from that portion of a judgment entered in the Southern District of New York pursuant to the order of Judge Milton Pollack after a jury rendered a special verdict awarding plaintiff Jane Shatkin $87,500 for conscious pain and suffering experienced by her son Lloyd Shatkin immediately prior to the crash of an American Airlines jet on which he was a passenger. Plaintiff cross-appeals from that portion of the special verdict that awarded her $15,000 for loss of services and $15,000 for loss of financial support. We reverse the award for pre-impact pain and suffering and remand with instructions to enter judgment for the defendants notwithstanding the verdict. We affirm the awards for loss of services and financial support.

    3

    This case stems from the highly publicized crash of a DC-10 plane on an American Airlines flight near O'Hare International Airport on May 25, 1979, after it lost an engine during take-off. All of those aboard the plane, including Lloyd Shatkin and his wife, Ina, were killed immediately upon impact. Mr. and Mrs. Shatkin left mutual wills bequeathing their property in the event of their simultaneous deaths to their respective parents. Lloyd's will left three-quarters of his estate to his mother, Jane S. Shatkin, and one quarter to his wife's parents. His mother was appointed executrix of his estate and as such brought this action against American and the jet's manufacturer, McDonnell Douglas, to recover damages for wrongful death and pre-impact pain and suffering. On June 29, 1979, the Judicial Panel on Multidistrict Litigation ordered the action transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1407 for consolidated pre-trial proceedings. After conducting extensive discovery the parties entered a "no contest" stipulation as to the defendants' liability on September 10, 1982. On November 18, 1982, the action was remanded to the Southern District of New York for trial of the damages claim.

    4

    Following further discovery trial was held from June 9 through June 13, 1983. The evidence was undisputed that the plane was a wide-bodied three-engine DC-10 manufactured by defendant McDonnell Douglas Corporation and operated by defendant American Airlines on its Flight 191, which took off on May 25, 1979, from O'Hare International Airport, Chicago, Illinois. Upon take-off the plane lost an engine on its left side. Mr. Shatkin, a passenger, was seated on the right side of the plane in seat No. 24H, from which a passenger would not normally be able to note the absence of an engine on the left side. The total flight lasted 31 seconds from take-off until the crash.

    5

    Portions of a report of the National Transportation Safety Board (NTSB), which is based on data from the plane's flight recorder, reveal that the plane was able to take off smoothly despite the loss of the engine, climbing to 325 feet. The flight lifted off in a slight left wing-down attitude. This condition was corrected by application of a right wing-down aileron and right rudder, stabilizing the plane at a wings-level stance, and the plane continued to climb. At about 11 seconds before impact the plane began to roll slightly to the left. It was not until 3 seconds before impact that the plane reached a 90-degree position. It then crashed. Barbara Mueller, who witnessed the movements of the plane from a distance of 2 1/2 miles from the airport and 1 mile from the scene of the crash, testified that she saw the plane tilt from side to side and descend nose-down just before the crash. However, she did not see the take-off and had no recollection of the timing of the movements she witnessed other than to say, "It might have been seconds, minutes, I cannot really tell you." Thus there is not necessarily any inconsistency between her testimony and the flight recorder. Both indicate that the plane was not in obvious difficulty until a very short time before impact.

    6

    In view of the "no contest" stipulation with respect to liability the trial was concerned almost entirely with proof as to damages. Aside from evidence as to the plane's pre-impact movements no proof of conscious pain and suffering on the part of Lloyd Shatkin was introduced. However, plaintiff did offer some evidence in support of her claim for loss of services and financial support.

    7

    At the time of the crash Lloyd Shatkin was 29 years old and employed as a buyer for Mayfair Incorporated, a retail home furnishing firm in Albany, New York. His 1979 salary was $18,000 a year. His employer testified that his 1980 salary probably would have been $28,000 to $30,000, including bonus, but that it was impossible to estimate his future income from the company.

    8

    Plaintiff Jane S. Shatkin, a nurse, was a 66-year old widow (her husband died in 1969) with a life expectancy of 14.8 years at the time of her son's death. She had received $80,000 in life insurance payments on her husband's death and returned to work. She earned approximately $12,000 to $14,000 in 1978 and $12,000 in 1979. Prior to his death her son Lloyd had in 1969 assigned to her monthly payments of $96.01 due under an annuity inherited from his father, which expired in 1979. The son was apparently devoted to his mother, making small gifts to her from time to time, advising that she could come to live with him rather than go into a home and doing repair jobs for her around her house.

    9

    After a voir dire Judge Pollack filed an opinion (published at 565 F.Supp. 93) refusing to admit the testimony of Dr. Edmund Mantell, an economics expert called by plaintiff to testify as to his projections of Lloyd Shatkin's future gifts to Mrs. Shatkin based on assumptions as to economic trends, future tax rates, Lloyd's income and percentages of disposable income that he assumed Lloyd would probably have assigned to his mother. Objections to the evidence were sustained on the ground that "Dr. Mantell's assumptions and techniques of calculation involve egregious and gross error at almost every step," 565 F.Supp. at 94, and that "[t]hese assumptions are no more than conjecture and wild speculation." Id. at 95. Judge Pollack concluded that "[g]iven all the facts and circumstances of this case, the testimony would seriously prejudice, mislead and confuse the jury...." Id. at 96.

    10

    The jury returned special verdicts awarding $87,500 for Lloyd Shatkin's conscious pain and suffering prior to impact, $15,000 for the loss of household services that Lloyd would otherwise have performed for his mother, and $15,000 for support Lloyd would have given his mother over the course of their respective life expectancies. On June 20, American moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict on the claim for pre-impact pain and suffering; in the alternative, American sought an order pursuant to Rule 59 setting aside the verdict and granting a new trial on that issue. The court denied the motion on July 5 and entered judgment on July 6, 1983, from which the defendants appeal.

    11

    On August 6, 1983, plaintiff moved for leave to file a motion for a new trial on the issues of loss of support and services, alleging that the jury's awards were inadequate. On August 12, 1983, the district court denied the motion both on the merits and because it was untimely, from which plaintiff appeals.

    12

    DISCUSSION

    13

    Plaintiff's Claim for Pre-Impact Pain and Suffering

    14

    Defendants claim that the district court erred in not dismissing plaintiff's claim based on the deceased's alleged pre-impact pain and suffering. Relying principally on Clancy v. Port of New York Authority, 55 A.D.2d 587, 389 N.Y.S.2d 615 (1st Dept.1976), they contend that under New York law no recovery may be had on such a claim.[1] Secondly they argue that, even if damages could be recovered for pre-impact pain and suffering, the claim here was wholly unsupported by the evidence. Since we agree with the latter contention it is unnecessary to rule on the former.

    15

    Assuming that pre-impact pain and suffering is compensable, it must first be shown by a preponderance of the evidence that the decedent had some knowledge or other basis for anticipating the impending disaster; otherwise no basis would exist for a finding of fright or mental anguish. In granting summary judgment dismissing a similar claim, the court in Anderson v. Rowe, 73 A.D.2d 1030, 425 N.Y.S.2d 180 (4th Dept.1980), recognized this elementary proposition:

    16

    "The plaintiff was not able to present any evidence that they suffered any conscious pain. Nor was the plaintiff able to show evidence from which one might imply that the decedents were aware of the danger and suffered from pre-impact terror." (73 A.D.2d at 1030, 425 N.Y.S.2d at 181).

    17

    Similarly, in Feldman v. Allegheny Airlines, Inc., 382 F.Supp. 1271 (D.Conn.1974), aff'd in relevant part, 524 F.2d 384 (2d Cir.1975), even though there was evidence suggesting that some passengers anticipated the plane crash that killed the decedent, the court dismissed the claim for pre-impact conscious pain and suffering, stating:

    18

    "Nor was any evidence presented from which the Court could fairly infer that the decedent was aware of the proximity of disaster in advance of the actual impact. Mr. Kelly was alert to the situation only because he was monitoring the plane's descent by looking out the window; the plane's attitude underwent no dramatic change indicative of disaster.

    19

    "Based on the proof adduced specifically on this point and on the totality of the circumstances of this case, the Court concludes that it would be too speculative to award damages for Mrs. Feldman's conscious pain and suffering and contemplation of death." (382 F.Supp. at 1300-01).

    20

    Eyewitness testimony to the decedent's pain and suffering is not essential to recovery; indeed, in most cases of the present type it would be difficult if not impossible to obtain. But at least some circumstantial evidence must be adduced from which it can reasonably be inferred that the passenger underwent some suffering before the impact. See, e.g., Solomon v. Warren, 540 F.2d 777, 792 (5th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977) (permissible to infer that four people aboard small Cessna plane were aware of impending death from fact that pilot radioed plans to ditch at sea).

    21

    In the present case there is no evidence in the record from which a person could reasonably find that Lloyd Shatkin suffered any conscious pain and suffering prior to the impact which instantly killed him. The NTSB report, the reliability of which has not been questioned (indeed it was introduced by the plaintiff), reveals that despite the loss of the left engine the plane on which Shatkin and his wife were passengers took off normally, was able to correct a slight bank to the left, and did not go into its 90-degree left plunge until only 3 seconds before it crashed. There is no evidence permitting an inference that Shatkin was aware that the left engine had been lost on take-off; since he was seated on the right side of the wide-bodied plane, it would be sheer speculation to infer that he knew of the incident. There was no evidence that the pilot or anyone else called the danger to the passengers' attention. As far as the record is concerned Shatkin could have dozed off in his seat. Even if one accepts as wholly credible the testimony of Mrs. Mueller that from a distance of 1 to 2 1/2 miles she saw the plane tilt and roll just before the crash this evidence is wholly insufficient to create an inference that Shatkin knew something was wrong. It is a common experience for a plane in no danger to bank to one side immediately after take off, sometimes sharply, in order to conform to prescribed traffic patterns.

    22

    On this record we are therefore forced to conclude that even assuming a claim for pre-impact pain and suffering were recognizable in New York, the district court erred in denying defendants' motion for judgment NOV dismissing plaintiff's claim. In view of the insufficiency of the evidence we need not rule upon the issue of whether such a claim, if supported by evidence, would be insufficient on its face. For the same reason we also need not decide whether certain remarks of plaintiff's counsel and the witness Barbara Mueller were so inflammatory as to require a new trial.

    23

    The Cross-Appeal

    24

    In support of her cross-appeal from the judgment awarding her $15,000 for loss of services and $15,000 for loss of financial support, plaintiff contends that Judge Pollack erred in (1) excluding evidence of her financial needs and the defendant's possible future income, (2) refusing to admit the proffered expert testimony of Dr. Edmund Mantell, and (3) applying a higher burden of proof than that required by New York law. We have reviewed each of these arguments and find them to be without merit.

    25

    It is elementary that a claim for loss of financial support may be supported by evidence of the plaintiff's needs, and the deceased's probable future income, even though inexact, since such proof by its nature usually cannot be precise. See Jones & Laughlin Steel Corp. v. Pfeifer, ___ U.S. ___, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983); Parilis v. Feinstein, 49 N.Y.2d 984, 985-86, 429 N.Y.S.2d 165, 166, 406 N.E.2d 1059, 1060 (1980). The same principle governs admission of evidence regarding services the deceased would probably render to the plaintiff. But the proffered evidence must be relevant to the issues on trial within the meaning of Fed.R.Evid. 401. The trial judge is vested with wide discretion in determining whether an adequate foundation has been laid for admission of the evidence and whether its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury. Fed.R.Evid. 403. See United States v. Corr, 543 F.2d 1042, 1051 (2d Cir.1976); United States v. Catalano, 491 F.2d 268, 273 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974).

    26

    In the present case the district court excluded evidence of the plaintiff's needs and her son's income not because of inexactness but because of her failure to lay a proper foundation by showing the probability that he would support her and the extent of such likely support. The evidence on that score was limited to several vague assurances made by Lloyd and repeated by his mother at trial, and similar testimony by a friend of the family. Yet it was clear to Judge Pollack that the only support Lloyd had ever given his mother during his lifetime was a monthly annuity of $96.01, which his father had left him, and which was due to expire in 1979. Although Mrs. Shatkin's financial difficulties were said to have begun when she retired from her position as director of health services at Sarah Lawrence College on January 1, 1978, Lloyd gave her no additional money before his death in late May 1979. Moreover, Mrs. Shatkin was only a secondary beneficiary under Lloyd's will, which left everything to his wife. If his wife had lived, Mrs. Shatkin would have received nothing from his estate.

    27

    There was no evidence that Lloyd had ever made a firm commitment with any reasonable degree of certainty to support his mother. Given this state of the record we cannot say that the district court abused its discretion in refusing to admit evidence regarding Mrs. Shatkin's financial condition and standard of living and testimony of her son's employer about his possible future income. As Judge Pollack stated to plaintiff's counsel "[There] is not a sufficient foundation for what you are attempting to do. You are extrapolating speculations on hypotheses with more speculations at the end. The answer is that you have not laid a foundation for any such evidence."

    28

    Nor do we find that Judge Pollack erred in excluding the testimony of Dr. Edmund Mantell, plaintiff's economics expert, on the extent of plaintiff's lost support. Here the district court, in ruling on the admissibility of the proposed testimony, possessed not only the power under Fed.R.Evid. 403 to determine whether it had a propensity for misleading or confusing the jury, see United States v. Margiotta, 662 F.2d 131, 142 (2d Cir.1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Bowe, 360 F.2d 1, 15 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966), but also the discretionary right under Fed.R.Evid. 703 to determine whether the expert acted reasonably in making assumptions of fact upon which he would base his testimony, see Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1313, 1325-26, 1330 (E.D.Pa.1981); 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 703[03] (1982) (the court must find that the data underlying the expert's opinion are "of a kind that is reasonably relied upon by experts in the particular field").

    29

    The district court noted a number of assumptions and assertions made by Dr. Mantell that were so unrealistic and contradictory as to suggest bad faith. For example, although the only contribution that the decedent had made to his mother was his assignment of the $96.01 monthly annuity due to expire in 1979, Dr. Mantell assumed that Lloyd would have contributed 20% of his disposable income to his mother. That figure was derived from statistics indicating that the average head of a household spends 20% of his income on himself; we find no basis for using that statistic in these calculations, where it has no relevance at all. In a further effort to justify such a high level of projected contributions, Dr. Mantell compared their discounted present value with Mrs. Shatkin's undiscounted projected consumption; such an "apples and oranges" comparison simply cannot withstand scrutiny. Moreover, after projecting Lloyd's income for 1990 to be either $151,990 or $117,700, Dr. Mantell deducted no state tax and applied a constant 11.7% federal tax rate. That assumption is highly suspect even when considered on its own; it is completely unacceptable when one realizes that he used a 23% rate in calculating the tax on Mrs. Shatkin's income from whatever award she might receive, which of course would be far less than Lloyd's annual income. Clearly such proposed testimony was riddled with errors, and therefore excludable under Fed.R.Evid. 703. In addition, it would probably have hopelessly confused and misled the jury because of the latter's inability to appraise the extremely questionable and unsupported assumptions underlying the testimony. We therefore conclude that the trial court's decision to exclude that testimony was not erroneous.

    30

    Finally, plaintiff claims that it was error for the district court not to charge the jury on New York's "Noseworthy rule," which permits a plaintiff in a wrongful death action to assume a lower burden of proof than in an ordinary negligence action. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948). We are not persuaded that the Noseworthy rule applies to this case, where the defendants have conceded their liability and the only issue is the proper measure of damages. But even if we assume that it was error not to charge the rule with respect to proof of loss of support and services the error was clearly harmless. There simply was no evidence that the plaintiff would have received any financial support from her son other than the annuity that expired in 1979. Viewed in that light the jury's special verdict of $15,000 was not unreasonable. The $15,000 verdict for the loss of Lloyd's services — which amounted to repairing an iron, changing light bulbs, moving furniture and the like during his occasional visits to Mrs. Shatkin's home — was also quite adequate. In short, applying the Noseworthy rule would have made no difference in this case.

    31

    The judgment, insofar as it awards $87,500 for pain and suffering, is reversed and the case remanded for entry of judgment notwithstanding the verdict on that issue. In all other respects the judgment is affirmed.


    33

    [1] Following New York's choice of law principles, we apply New York law to this case, both because of the numerous contacts with the forum, and because the parties have conducted the entire litigation on the assumption that New York law governs. See Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978).

  • 9 Emotional Harm: Shu-Tao Lin v. McDonnell Douglas Corp.

    This is one of a pair of cases (to be read with Shatkin v. McDonnell Douglas Corp.) where the recovery of passenger/plaintiff for pre-impact flight in an airplane crash was dependent upon seating arrangement on the plane (and the resulting awareness of the inevitable impact).

    1

    WINTER, Circuit Judge:

    2

    Defendants American Airlines, Inc. and McDonnell Douglas Corporation appeal from a final judgment entered after a jury trial before Judge Sweet. This is a wrongful death diversity action in which the parties have entered into a no-contest stipulation as to defendants' liability. The jury verdict consisted of a damage award in the amount of $7,010,000. In an opinion with which familiarity is assumed, Judge Sweet held that manifold errors had denied the defendants a fair trial and that the verdict was excessive. Shu-Tao Lin v. McDonnell Douglas Corp., 574 F.Supp. 1407 (S.D.N.Y. 1983). He ordered a new trial unless the plaintiff accepted a remittitur in the amount of $4,274,500.

    3

    The plaintiff accepted this offer, and final judgment was entered. On appeal, defendants argue that the judgment as remitted is still excessive and request as relief either a recalculated remittitur or a new trial. Because we conclude that use of remittitur deprived the defendants of their right to a jury trial on the issue of pecuniary loss, we reverse and remand for further proceedings. We affirm the verdict as to pre-impact pain and suffering.

    4

    FACTS AND PROCEEDINGS BELOW

    5

    The decedent, Shu-Ren Lin, M.D., was killed on May 25, 1979, when the American Airlines jet in which he was a passenger crashed shortly after takeoff from Chicago's O'Hare International Airport. At the time of his death, Dr. Lin, age 42, was an associate professor of neuroradiology at the University of Rochester Medical School. He was married and had four children, then of ages 15, 14, 9, and 1. The administrator of decedent's estate, Shu-Tao Lin, brought this action to recover damages for Dr. Lin's death as well as for the pain and suffering he may have experienced in the period immediately preceding the crash.

    6

    After the case had been transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Illinois for proceedings common to the many actions arising out of the crash, the parties entered into a no-contest stipulation on the issue of defendants' liability. The case was then returned to the Southern District of New York for a trial on the issue of damages.

    7

    After a five-week trial, the jury returned a verdict of $7,000,000 for the pecuniary loss suffered by Dr. Lin's wife and children as a result of his death. Using a special verdict form, the jury expressly based the award on a finding that Dr. Lin would have "continued to practice in his profession substantially as he had prior to his death and would not have entered the private practice of neuroradiology." The jury also awarded $10,000 for Dr. Lin's pre-impact pain and suffering.

    8

    After entry of judgment, the defendants moved to set aside the component of the jury's verdict relating to pecuniary injury and for a new trial on that issue. At the same time, they argued that the jury's finding relating to Dr. Lin's future practice should be preserved in any subsequent trial. The defendants also moved for judgment notwithstanding the verdict on the issue of Dr. Lin's pre-impact pain and suffering.

    9

    In ruling on these motions, Judge Sweet held that various errors committed before and during the trial combined to deny the defendants their right to a fair trial.[1] 574 F.Supp. at 1409-13. Most important was the admission of testimony by Dr. Mantell, an economist who testified for the plaintiff concerning Dr. Lin's likely future income stream. Judge Sweet concluded that some of Dr. Mantell's estimates were based on contradictory factual assumptions while others were utterly unsupported by the record. His testimony was, therefore, neither probative nor based on data "of a type reasonably relied upon by experts in the particular field," as required by Fed.R. Evid. 703.[2] Moreover, even if some of Dr. Mantell's testimony was admissible, the defendants never had an opportunity in pretrial discovery to examine his computer methodology and thus were impaired in conducting an effective cross-examination.[3]

    10

    Noting that in the last full year of his life Dr. Lin had earned $56,000 and that the jury's award could be invested to afford Dr. Lin's family some $700,000 in annual tax-free income, Judge Sweet concluded that the net effect of the errors had been to produce an excessive verdict and to deny the defendants a fair trial. Rather than grant the defendants' motion for a new trial outright, however, he offered the plaintiff a remittitur, permitting a choice between the certainty of a lowered verdict and the uncertainty of further proceedings.

    11

    To derive what he believed to be the appropriate remittitur, Judge Sweet computed the damages de novo to determine the amount a "properly functioning jury — one not misled by the prejudicial evidence presented in this trial — would have awarded." 574 F.Supp. at 1415. He concluded that a properly functioning jury would have awarded the plaintiff $4,274,500, $3,864,000 of which represented compensation for the loss of Dr. Lin's financial support, $400,000 for the loss to Dr. Lin's children of his nurture, care and guidance, and $10,000 for Dr. Lin's pre-impact pain and suffering.[4] Among the assumptions used by Judge Sweet to derive these figures were: (1) in computing the present value of Dr. Lin's projected future income stream, no adjustment for Dr. Lin's potential income tax liability was necessary since Dr. Lin's family would incur taxes on the income earned on the damage award and the two liabilities would effectively cancel each other out; (2) the loss of Dr. Lin's nurture, care and guidance could be valued by hypothesizing that his children might compensate for his loss by seeking psychiatric help and that the reasonable cost of such help would be $100,000 per child; (3) prejudgment interest was not included as an element of the award; and (4) the jury's award of $10,000 for Dr. Lin's pre-impact pain and suffering should be included in the judgment.

    12

    Based on his calculation of what a properly functioning jury would have awarded, Judge Sweet offered the plaintiff the choice between the remittitur and a new trial. He did not explicitly rule on the defendants' motion that a new trial must proceed on the factual assumption, as found by the jury, that Dr. Lin "would have continued to practice his profession substantially as he had prior to his death." The plaintiff accepted the remittitur and defendants appealed. On appeal, defendants renew their contention that a new trial should be granted on the limited issue of the pecuniary injury inflicted by the loss of 49*49 the income stream Dr. Lin would have earned if he continued to practice "substantially" as he had before his death. Alternatively, they seek an appellate recomputation of the damages.

    13

    We reverse and remand for further proceedings with regard to pecuniary loss. We affirm the award for pre-impact pain and suffering.

    14

    DISCUSSION

    15

    We agree that defendants did not have a fair trial. Numerous errors occurred in the course of the trial. The most prejudicial of these was allowing the jury to consider as evidence Dr. Mantell's lengthy, extravagant, and non-probative projections of Dr. Lin's future income. Moreover, because defendants lacked the opportunity for adequate pretrial discovery, their cross-examination may have been less probing than one prepared with foreknowledge of Dr. Mantell's testimony. Even if this jury had found damages identical to those ultimately calculated by Judge Sweet, therefore, the verdict could not stand.

    16

    The question thus becomes whether it was proper for the district judge to use the device of remittitur to make his own calculation of the plaintiff's damages. We hold that it was not and, therefore, remand for a new trial. In the interests of judicial economy, however, we do not limit our decision to an order for a new trial. Rather, since some of the assumptions underlying Judge Sweet's calculation of damages will inevitably reappear in this litigation either as jury instructions or as rulings of law, and since these issues have been fully argued on this appeal, we examine certain of them for their conformity with applicable state law.[5] We also consider the scope of the issues to be addressed in the new trial.

    17

    a) Use of a Remittitur

    18

    Remittitur is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial. See generally 6A J. Moore, Moore's Federal Practice ¶ 59.08[7] (2d ed. 1983); Note, Remittitur Practice in the Federal Courts, 76 Colum.L.Rev. 299 (1976). The practice has come to be employed in two distinct kinds of cases: (1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, see, e.g., Joiner Systems, Inc. v. AVM Corp., 517 F.2d 45, 49 (3d Cir.1975); and (2) more generally, where the award is "intrinsically excessive" in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error, see, e.g., Lanfranconi v. Tidewater Oil Co., 376 F.2d 91, 96-97 (2d Cir.), cert. denied, 389 U.S. 951, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). Crucial to the practice of remittitur in either kind of case is the requirement that the court confine its role to the removal of the excess portion of the verdict so that the "damage calculation leaves in the judgment a portion of what the jury awarded." Akermanis v. Sea-Land Service, Inc., 688 F.2d 898, 902 (2d Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983); see Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935) (remittitur "merely lop[s] off an excrescence").

    19

    Since the nature of the errors in the instant case yields no particular quantifiable amount by which to reduce the award for pecuniary loss, we deal here with the second kind of case, namely intrinsically excessive damages. Courts have developed conflicting rules about how to compute the "excrescence" in such cases. Some reduce the verdict to the maximum amount a reasonable jury could have awarded, see, e.g., Reinertsen v. George W. Rogers Construction Corp., 519 F.2d 531 (2d Cir.1975); others reduce it to what they believe a properly functioning jury would have awarded, see, e.g., Uris v. Gurney's Inn Corp., 405 F.Supp. 744 (E.D.N.Y.1975); and at least a few courts reduce the verdict to the minimum amount a reasonable jury could have awarded, see, e.g., Meissner v. Papas, 35 F.Supp. 676 (E.D.Wis.1940).

    20

    We need not choose among these various rules, however, for these formulations are not appropriate for use in the instant case. These formulations are designed for circumstances in which a properly instructed jury hearing properly admitted evidence nevertheless makes an excessive award. They are not designed for a case such as the present one, in which prejudicial error has infected the jury's entire consideration of plaintiff's pecuniary loss. See International Paper Co. v. Busby, 182 F.2d 790, 792 (5th Cir.1950). In such circumstances, it is impossible to preserve a portion of the jury's verdict, as Akermanis teaches, 688 F.2d at 902, by starting with the jury's verdict and cutting it down. Instead, one must proceed to calculate the damages from zero and build up. While this distinction may seem purely semantic, it is not, since building a damage award for pecuniary loss from zero up disregards the jury's verdict entirely and deprives the defendants of their right to trial by jury. We must, therefore, remand for a new trial.

    21

    b) The Assumptions Underlying the District Court's Award

    22

    Anticipating that we might also attempt to recalculate a proper remittitur, the parties have briefed the propriety of the assumptions underlying Judge Sweet's calculation of damages. Because we refuse to calculate a remittitur for the reasons expressed supra, the question of proper assumptions is not, strictly speaking, before us. Nevertheless, since at least some of these assumptions will almost surely reappear as jury instructions or legal rulings at a new trial, we address them in the interests of judicial economy and bringing this litigation to a conclusion.

    23

    1) The Tax Liability Issue

    24

    In a ruling made during the trial, Judge Sweet held in the absence of a controlling New York authority that, in an action brought under the New York wrongful death statute, N.Y.Est.Powers & Trusts Law § 5-4.3 (McKinney 1981), the New York Court of Appeals would embrace the reasoning of the United States Supreme Court in Norfolk & Western Railway v. Liepelt, 444 U.S. 490, 493-94, 100 S.Ct. 755, 757-58, 62 L.Ed.2d 689 (1980) (jury must be instructed as to effect of taxes on future earnings in actions under the Federal Employers' Liability Act). Adopting Liepelt would allow a defendant in a New York wrongful death action to introduce evidence that a decedent's future income stream would have been subject to the income tax. In making his calculation of damages, Judge Sweet adhered to this ruling but then denied it practical effect by further holding that the trier of fact should also consider that the income stream produced by the damage award would be subject to tax. Assuming that these two potential tax liabilities would produce a wash, he made no allowance for Dr. Lin's potential income tax liability in computing the damage award. 574 F.2d at 1415.

    25

    Although it is possible that plaintiff may have had the right to cross-appeal under Akermanis, 688 F.2d at 903,[6] from Judge Sweet's ruling on the applicability of Liepelt under New York law, he did not do so. Thus, we lack the benefit of briefing by either party on this important and controversial question of New York law. Compare Vasina v. Grumman Corp., 644 F.2d 112, 118 (2d Cir.1981) (no case "suggests that the New York Court of Appeals would embrace Liepelt today") with Gilliard v. New York City Health & Hospitals Corp., 77 A.D.2d 532, 430 N.Y.S.2d 308 (1st Dep't 1980) (decedent's tax liability among the factors considered in finding jury verdict excessive). Under these circumstances, we choose not to address the question of whether the Court of Appeals would adopt Liepelt's reasoning in wrongful death cases.[7]

    26

    The other side of the tax question — whether the trier of fact should consider the effect of taxes on the income produced by the award — was briefed, however. We assume, for purposes of resolving this question, that the trier of fact may consider the decedent's potential tax liability in accord with Liepelt.

    27

    We believe that a trier may not conclude that taxes will likely be paid on income produced by the award, absent evidence that such will be the case. We take judicial notice, as did Judge Sweet elsewhere in his opinion, that should the plaintiff desire, the entire award could be invested at the present time in tax-free securities yielding about 10% annually at current market rates. 574 F.Supp. at 1413. We further note that through investment in a properly diversified portfolio of such securities, the award can yield not only tax-free income but also virtually risk-free income. We thus fully agree with the Fourth Circuit that there is "no basis for an adjustment for a tax liability which is avoidable and may never be incurred." Flannery v. United States, 718 F.2d 108, 112 (4th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2679, 81 L.Ed.2d 874 (1984) (action under the Federal Tort Claims Act). We see no reason why the New York Court of Appeals would not agree as well, even if it adopted Liepelt. Upon remand, a special verdict form should be devised to allow separate review of the Liepelt issue.

    28

    2) Prejudgment Interest

    29

    We next consider the applicability of prejudgment interest to whatever award is ultimately made in this case. The New York wrongful death statute provides that "[i]nterest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be a part of the total sum awarded." N.Y.Est. Powers & Trusts Law § 5-4.3 (McKinney 1981). The parties agree that this language mandates the award of some prejudgment interest but disagree as to how much. Plaintiff contends that such interest has accrued on the entire award while defendants would limit it to the losses deemed to have occurred between the date of the decedent's death and the entry of judgment.

    30

    Although case law on this question is surprisingly scant, we think it reasonably clear that the wrongful death statute should be construed as defendants contend. The purpose of the statute is to compensate for "`pecuniary injuries' suffered by the distributees of decedent's estate." Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 406 N.E.2d 1059 (1980). The prejudgment interest provision implements this goal by ensuring that the distributees are compensated for the time value of the income stream the decedent would have earned between death and the entry of judgment. We conclude that a wrongful death recovery for lost future income under New York law is thus effectively split into two components: (1) compensation for prejudgment losses, as to which interest is applied at a statutory rate, N.Y.Civ.Prac.Law § 5004 (McKinney Supp.1983); and (2) compensation for post-judgment losses, which are discounted to present value in order to offset future earning power of a present lump sum award for future losses. Were prejudgment interest applied to the component of the award intended to compensate the plaintiff for post-judgment losses, plaintiffs would effectively receive a double recovery. Finding no basis for such a double recovery, we hold that prejudgment interest is limited under New York law to losses suffered between the date of death and the entry of judgment.[8] Accord Petition of the City of New York, 332 F.2d 1006 (2d Cir.1964) (admiralty action disallowing award of prejudgment interest on future post-judgment losses).

    31

    3) Loss of Nurture, Care and Guidance

    32

    Recovery for wrongful death under New York law includes compensation not only for the loss of "direct financial benefits" but also for the loss of the nurture, care and guidance decedents would provide their children had death not intervened. Zaninovich v. American Airlines, Inc., 26 A.D.2d 155, 271 N.Y.S.2d 866 (1966). Assessing the pecuniary value of such loss is of course problematic, and it is hardly surprising that New York courts and juries appear to fashion somewhat arbitrary amounts in doing so. See, e.g., Long v. City of New York, 81 A.D.2d 880, 439 N.Y.S.2d 58 (2d Dep't 1981) (jury award of $150,000 for loss of nurture reduced to $75,000); Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535 (4th Dep't 1980) (jury award of $100,000 for loss of nurture upheld). We thus sympathize with Judge Sweet's decision to "speculate" about the pecuniary value of the loss of nurture, 574 F.Supp. at 1414.

    33

    Nevertheless, we perceive no support for the analogy between Dr. Lin's role as a father and that of a psychiatrist and no factual basis upon which to predict that in his absence his children might seek psychiatric care. The calculation of such damages, however difficult, is not made more accurate by the use of unfounded assumptions, especially when such assumptions generate a recovery significantly larger than appears typical for this type of loss in New York courts. See, e.g., Long v. City of New York, 81 A.D.2d at 880, 439 N.Y. S.2d at 59 ($75,000 awarded for infant's loss of nurture). We therefore reject the use of psychiatric costs as relevant to the value of lost nurture, care and guidance.

    34

    Defendants also attack the award for nurture, care and guidance on the ground that it should have been discounted to present value. We agree, although we have not found a New York decision explicitly discounting such an award. However, Dr. Lin presumably would have offered his children nurture, care, and guidance throughout the period of time preceding their majority. To the extent that a present lump sum award compensates a child financially for such care in later years, the award represents the present payment of future value and should be discounted accordingly.[9] Cf. Gretchen v. United States, 618 F.2d 177, 181 (2d Cir. 1980) (awards for future pain and suffering under federal Public Vessels Act should be discounted to present value).[10]

    35

    4) Pre-impact Pain and Suffering

    36

    Independent of his calculation of the remittitur, Judge Sweet denied the defendants' motion for judgment notwithstanding the verdict on the jury's award of $10,000 for the fear and apprehension of death experienced by Dr. Lin in the seconds before impact.

    37

    We conclude that New York law does permit recovery for a decedent's pre-impact fear for substantially the reasons set forth in Judge Sweet's opinion. 574 F.Supp. at 1416-17. A decedent's representative unquestionably may recover for pain and suffering experienced in a brief interval between injury and death. Juiditta v. Bethlehem Steel Corp., 75 A.D.2d at 138, 428 N.Y.S.2d at 543 (4th Dep't 1980) ($70,000 for pain and "apprehension of impending death" experienced during a one-hour period). We see no intrinsic or logical barrier to recovery for the fear experienced during a period in which the decedent is uninjured but aware of an impending death. The Appellate Division has implicitly embraced this view in dismissing such a suit, not for failure to state a claim, but for lack of "evidence ... that the decedents were aware of the danger and suffered from preimpact terror." Anderson v. Rowe, 73 A.D.2d 1030, 1031, 425 N.Y.S.2d 180 (4th Dep't 1980).

    38

    We further hold that plaintiff introduced sufficient evidence to give the issue of Dr. Lin's pre-impact pain and suffering to the jury and that the $10,000 award is not excessive.

    39

    In Shatkin v. McDonnell Douglas Corp., 727 F.2d 202 (2d Cir.1984), which arose out of the same crash, we concluded that there was insufficient evidence to support a finding that a passenger seated on the right side of the plane suffered any pre-impact conscious pain and suffering or that he was even aware of the impending disaster until approximately three seconds before the crash. In contrast, Dr. Lin had been assigned a seat over the left wing and, viewing the evidence in the light most favorable to the plaintiff, we conclude that a jury might find that he saw the left engine and a portion of the wing break away at the beginning of the flight, which lasted some thirty seconds between takeoff and crash.[11]

    40

    c) Scope of the Retrial

    41

    We turn now to the question of whether the issues of Dr. Lin's future practice and pre-impact pain and suffering must be retried.

    42

    Defendants argue that damages for pecuniary loss should be calculated at the new trial upon the basis of the original jury's special verdict finding that "Dr. Lin would have continued to practice his profession substantially as he had prior to his death and would not have entered the private practice of neuroradiology." We disagree.

    43

    We recently reviewed the relevant authorities with regard to the scope of new trials where part of a jury verdict is set aside. Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1049-51 (2d Cir.1984). Familiarity with that discussion is assumed. In Crane, a jury had reduced a damage award by 50% on grounds of the plaintiff's contributory negligence. That reduction was set aside in its entirety, however, as against the weight of the evidence, and we held that plaintiff was not thereby entitled to a retrial as to the amount of damages.

    44

    The present case differs in material respects. In Crane, the damage verdict was a dispositive finding leading to a separable legal conclusion capable of independent resolution. Moreover, in view of the disposition of that case, every other issue was finally resolved, and a retrial would involve only the unchallenged part of the prior verdict.

    45

    In the instant case, however, the prior special verdict in question resolved only one of many interrelated adjudicative facts necessary to reach an ultimate legal conclusion. A retrial limited as defendant requests would not save time and would lead to considerable confusion. The conclusion that Dr. Lin would have "substantially" continued his "prior" practice is so general as to create considerable ambiguity as to what the prior jury had in mind. In view of the size of the verdict, it probably believed that he would have earned very considerable sums as an academic consultant or clinician in a growing diagnostic field. However, a belief that his future income would consist for the most part of only his academic salary is also consistent with the general conclusion as it is stated in the special verdict. Two radically different views of the pecuniary loss suffered thus fit comfortably within the confines of the special verdict. Moreover, the finding that Dr. Lin would not have entered private practice is not separable from the more general conclusion that he would have continued his prior practice. Indeed, it seems probable that the private practice finding resulted from the first jury's high estimate of his earnings as an academic consultant or clinician. Finally, no judicial economies will result from a retrial so limited since the next jury will likely have to hear the same evidence in order to understand what the prior jury had in mind. Wrangles over variations in testimony or the relevance of new evidence will inevitably result and will not be easily resolved. A limited retrial is thus a course fraught with uncertainty, delay, and opportunities for error and unfairness. We therefore remand with instructions to retry the entire case as to damages.

    46

    For similar reasons, however, the verdict and judgment as to pre-impact pain and suffering must be affirmed. It is wholly separable and foregoing a retrial will simplify further proceedings.

    47

    The verdict and judgment as to pre-impact pain and suffering are affirmed.

    48

    The remainder of the judgment is reversed and remanded for further proceedings consistent with this opinion.


    50

    [1] The errors are fully set out in Judge Sweet's opinion, and we summarize only the more important ones.

    51

    [2] As an alternative ground for exclusion, Judge Sweet held that under Fed.R.Evid. 403 the probative value of the expert's testimony was outweighed by its prejudicial effect. In view of the extravagant nature of Dr. Mantell's estimates, that conclusion follows a fortiori from the finding that his testimony lacked a scientific basis.

    52

    [3] This case, which consumed five weeks for trial and will now have to be retried, clearly demonstrates the importance of ensuring that adequate discovery of experts takes place prior to the start of trial. Such discovery not only affords the parties an opportunity to prepare cross-examination but also affords the district court an opportunity to assess the admissibility of the testimony before the jury hears it.

    53

    [4] Adding these three figures together yields the sum of $4,274,000. We are unable to determine why judgment was entered for $4,274,500.

    54

    [5] When state law claims are tried in a federal court, the scope of a party's right to a jury trial is a seventh amendment question, while the method of calculating the recoverable damages is a question of state law. Gagne v. Town of Enfield, 734 F.2d 902, at 905 (2d Cir.1984). The parties have assumed that the law of New York applies to the latter question. We see no reason to question this assumption.

    55

    [6] Akermanis arguably permits a cross-appeal by a plaintiff accepting a remittitur only when resolution of the cross-appeal in the plaintiff's favor would eliminate the need for a new trial. In this case, of course, resolution of the Liepelt issue would not do so. We do not decide whether Akermanis is so limited, because it is clear that plaintiff was not obliged to cross-appeal to preserve the Liepelt issue.

    56

    [7] The Seventh Circuit has recently suggested that, notwithstanding Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court sitting in diversity may view Liepelt as establishing a procedural rule on the admissibility of evidence and disregard state law. In re Air Crash Disaster Near Chicago, Ill., 701 F.2d 1189, 1195 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 204, 78 L.Ed.2d 178 (1984). Our decisions, on the other hand, have assumed that state law controls this point, see, e.g., Vasina v. Grumman Corp., 644 F.2d at 118 (2d Cir.1981).

    57

    [8] We recognize that the practice of dividing lost future income damage awards into pre- and post-judgment components as described supra has recently come under criticism. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 2551 n. 22, 76 L.Ed.2d 768 (1983). However, in cases involving federal law, a specific method has been developed for the computation of the value of lost future income. Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 39-40 (2d Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 351 (1981).

    58

    [9] By the same token, prejudgment interest can be applied to that portion of any nurture, care and guidance award deemed to represent losses suffered between the date of Dr. Lin's death and the entry of judgment. See supra.

    59

    [10] It was once believed to be an open question whether under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), discounting in a diversity case was a matter of state or federal law. Chiarello v. Domenico Bus Service, Inc., 542 F.2d 883, 886 n. 5 (2d Cir. 1976). More recently, we have held that state law governs the issue. O'Rourke v. Eastern Airlines, Inc., 730 F.2d 842, 857 n. 24 (2d Cir.1984).

    60

    [11] O'Rourke v. Eastern Airlines, Inc., 730 F.2d at 854-55 is not to the contrary. That decision merely affirmed a discretionary ruling that the testimony of a fellow passenger who neither saw nor knew what happened to the decedent in a five-to-ten second period was irrelevant.

  • 10 Emotional Harm: Gammon v. Osteopathic Hospital

    Gerald Gammon asked the Neal-York Funeral Home to make the funeral arrangements for his father, who died at Osteopathic Hospital. Two plastic bags were delivered to Gerald Gammon at the funeral home and taken by him to his father’s home in Limington. When he opened the second bag, Gammon discovered a bloodied leg, severed below the knee and bluish in color. 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. The jury concluded that Gammon had suffered “severe emotional distress” but that the distress was not proximately caused by intentional or reckless conduct of either defendant.

    1

    ROBERTS, Justice.

    2

    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.

    3

    I.

    4

    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.

    5

    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."

    6

    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.

    7

    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.

    8

    II.

    9

    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.

    10

    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.

    11

    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.

    12

    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 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.

    13

    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]

    14

    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 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.

    15

    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.

    16

    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.

    17

    The entry is: Judgment on Count I vacated.

    18

    Remanded for further proceedings consistent with the opinion herein.

    19

    All concurring.


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