TORT. PUTTING BRAKES ON THE BANDWAGON: NEBRASKA SLOWS RUNAWAY TORT LIABILITY IN BYSTANDER CLAIMS OF EMOTIONAL DISTRESS-JAMES v.

Transcription

1 TORT PUTTING BRAKES ON THE BANDWAGON: NEBRASKA SLOWS RUNAWAY TORT LIABILITY IN BYSTANDER CLAIMS OF EMOTIONAL DISTRESS-JAMES v. LIEB INTRODUCTION "The timorous may stay at home. "* When a tortious accident harms a victim, the law seeks to remedy the harm done by awarding compensatory damages. 1 Damages in tort law typically consist of monetary remuneration for harm to the victim's property, for injury to the victim's body, and more recently, for the devastation of the victim's mental and emotional well-being. 2 These common elements of damages, however, do not always remedy all the harm done by a negligent defendant; under certain circumstances there will be witnesses to the accident who will be emotionally traumatized by their fear for the peril of the victim. 3 These emotional ills that bystanders may suffer continue to exist long after the victim has obtained a judicial remedy for damages sustained in the accident. 4 How do American courts respond to bystanders' claims for the emotional distress suffered in witnessing a negligent accident harm a loved one? To more clearly understand the possibilities present in bystander cases, consider the following hypothetical situation: A, B, C and D are siblings playing in a park. E, the fifth sibling, is at home with the * Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). Referring to a plaintiff's claim that "the Flopper" at Coney Island was a danger to life and limb, Chief Judge Cordozo preceded this remark with a reminder that "[t]he antics of the clown are not the paces of the cloistered cleric.". Id. 1. See generally G. CALABRESI, THE COSTS OF ACCIDENTS, A LEGAL AND Eco- NOMIC ANALYSIS (1975). 2. Magruder, Mental and Emotional Disturbances in the Law of Torts, 49 HARV. L. REV. 1033, (1936). 3. See, e.g., Mobaldi v. Board of Regents of the Univ. of Cal., 55 Cal. App. 3d 573, -, 127 Cal. Rptr. 720, 723 (1976) (holding her child, a foster mother witnessed the negligent administration of a hypodermic containing ten times the prescribed dosage of medication); Campbell v. Animal Quarantine Station, 63 Haw. 557, -, 632 P.2d 1066, 1067 (1981) (receiving a telephone call from their veterinarian informing them of the negligently caused death of their beloved dog, a family became distressed); Rickey v. Chicago Transit Auth., 98 Ill. 2d 546, -, 457 N.E.2d 1, 2 (1983) (riding an escalator, a small boy witnessed his brother being strangled by a scarf that had become ensnared by the defendant's machinery). 4. See Dziokonski v. Babineau, 375 Mass. 555, -, 380 N.E.2d 1295, (1978) (learning of their daughter's injury, both parents became emotionally traumatized and subsequently died).

2 CREIGHTON LAW REVIEW [Vol. 20 flu. X, a drunken driver, drives off the roadway and through the park, killing A. B is also injured by the car; C narrowly escapes injury; D is never in peril but witnesses the entire event. When they begin to understand that A had been killed, the children, including E, all suffer similar emotional responses. The children suffer nightmares and crying spells; they become withdrawn, and the quality of their schoolwork declines. 5 Three general legal theories exist by which a court may compensate the siblings of A for their emotional misery: the impact rule, the zone of danger test, and the foreseeability test. 6 Assuming a proper determination of fact, courts following the impact rule will compensate only B for the emotional injuries sustained in the accident. 7 This rule requires the suffering of a physical impact by the plaintiff/bystander as a prerequisite to recovery for emotional distress. 8 Courts favoring the zone of danger test will compensate B and C. 9 This theory relies on the defendant's creation of a "zone of danger" to justify compensating the plaintiff for an emotional response. 10 The courts that propound the foreseeability test 5. See Saechao v. Matsakoun, 78 Or. App. 341, -, 717 P.2d 165, 166 (1986). Children analogous to each child in the hypothetical, except for E, brought an action for their emotional distress occasioned by the negligently caused death of their brother. Id. 6. See Diamond, Dillon v. Legg Revisited.- Toward a United Theory of Compensating Bystanders and Relatives for Intangible Injuries, 35 HASTINGS L.J. 447, 478 (1984) (emphasizing the theory as it operates in California); Millard, Intentionally and Negligently Inflicted Emotional Distress: Toward A Coherent Reconciliation, 15 IND. L. REV. 617, 625 (1982) (discussing the evolution of negligent infliction of mental distress in Indiana); Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging From Chaos, 33 HASTINGS L.J. 583, (1982) (recounting the maturation of the California doctrine); Reidy, Negligent Infliction of Emotional Distress in Illinois: Living in the Past, Suffering in the Present, 30 DE PAUL L. REV. 295, (1981) (criticizing the Illinois adherence to obsolescent precedent); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 GEO. L.J. 1237, (1971) (calling for recognition of negligently produced mental distress); Comment, Negligent Infliction of Emotional Distress: A Proposal for a Recognized Tort Action, 67 MARQ. L. REV. 557, (1983) (recommending that Wisconsin adopt the foreseeability test); Note, Limiting Liability for the Negligent Infliction of Emotional Distress: The "Bystander Recovery" Cases, 54 S. CAL. L. REV. 847, 847 (1981) (examining bystander recovery cases); Comment, Negligent Infliction of Emotional Distress: Developments in the Law, 14 U. BALT. L. REV. 135, 135 (1984) (tracing the development of the various emotional distress doctrines). 7. See infra notes and accompanying text. 8. See Saechao, 78 Or. App. at -, 717 P.2d at See infra notes and accompanying text. 10. See Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm - A Comment On the Nature of Arbitary Rules, 34 U. FLA. L. REV. 477, 485 (1982) (favoring the zone of danger rule over the foreseeability test). See also Bell, The Bell Tolls: Toward Full Tort Recovery For Psychic Injury, 36 U. FLA. L. REV. 333, (responding to Professor Pearson's 1982 article, supra); Pearson, Liability for Negligently Inflicted Psychic Harm: A Response to Professor Bell, 36 U. FLA. L. REV. 413,

3 1987] BYSTANDER RECOVERY IN TORT will likely find that X owes a duty to all siblings in the park and may award damages for emotional trauma to B, C and D. 11 A minority of courts will entertain claims of distress made by E, and even then, only the most egregious of fact scenarios will justify compensation for E's mental anguish. 12 Most English and American courts during this century have adhered to the zone of danger theory in cases of bystander emotional distress; however, a rapidly diminishing majority of jurisdictions continue to use the zone of danger test today. 13 The trend away from the zone of danger analysis and toward the foreseeability test for bystanders' claims of negligently inflicted emotional distress stems from the landmark California Supreme Court case, Dillon v. Legg. 14 In its most recent opportunity to hear a bystander's claim for emotional distress, the Nebraska Supreme Court in James v. Lieb' 5 abrogated the use of the zone of danger analysis and adopted a modified version of the Dillon foreseeability test.' 6 This Note outlines the facts presented in James and the Nebraska Supreme Court's holding, which adopted the foreseeability test for bystanders' claims of negligently inflicted emotional distress. 17 Next, this Note examines the various theories of recovery-- the impact rule, the zone of danger test, and the foreseeability test-- for claims of negligently inflicted emotional distress.' 8 Recent examples of adjudication under each theory are presented, and the relative merits of each theory are discussed. The James version of the foreseeability test is then compared to the Dillon test in an effort to make Nebraska practitioners aware of the similiarities and critical differences between the Nebraska test and the classic version.' 9 Finally, this Note examines recent, unique cases from other jurisdictions that follow the Dillon guidelines in an effort to determine (1984) (completing the lively exchange of law review articles with Professor Bell). 11. See infra notes and accompanying text. 12. See infra notes and accompanying text. 13. Comment, Negligent Infliction of Emotional Distress: A Proposal for a Recognized Tort Action, 67 MARQ. L. REV. 557, 572 (1983) [hereinafter Proposal]; Comment, Negligent Infliction of Emotional Distress: Developments in the Law, 14 U. BALT. L. REV. 135, 145 (1985) [hereinafter Developments]. Judge White cited seventeen states that have adopted the foreseeability test: California, Connecticut, Hawaii, Iowa, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island and Texas. James v. Lieb, 221 Neb. 47, 51, 375 N.W.2d 109, 112 (1985) Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) Neb. 47, 49, 375 N.W.2d 109, 111 (1985). 16. Id. at 54, 375 N.W.2d at See infra notes and accompanying text. 18. See infra notes and accompanying text. 19. See infra notes and accompanying text.

4 CREIGHTON LAW REVIEW [Vol. 20 whether a James analysis would have led to a substantially different result. 20 This Note's dual purpose is to make Nebraska practitioners generally familiar with the foreseeability test for bystanders' claims of negligently inflicted emotional distress and specifically aware of the unique elements of the foreseeability test adopted in James. FACTS AND HOLDING On the morning of August 10, 1983, Gregory and Demetria James were riding their bicycles near their family's home in Omaha, Nebraska. 21 With seven-year-old Demetria in the lead, the brother and sister rode north on 50th Street through its intersection with Spaulding Street. 22 Stop signs on the east-west thoroughfare controlled this residential intersection. 23 At the same time, a garbage truck owned by Watts Trucking Service, Inc. was backing into the intersection in a westerly direction on Spaulding Street. 24 The driver, John Lieb, failed to stop at the intersection or to spot the two children on their bicycles. 25 Lieb's vehicle struck and killed Demetria as Gregory watched. 26 Gregory himself was not behind the truck and was in no physical peril; however, witnessing his sister's death made him physically ill. 2 7 Subsequently, Gregory suffered and was expected to continue to suffer from emotinal distress and mental anguish. 28 John and Edna James initiated an action as parents and next friends of their son Gregory. 29 The complaint did not allege that Gregory was present in the physical "zone of danger" created by Lieb's negligent operation of the Watts garbage truck, but maintained that his psychic well-being was an interest worthy of legal protection. 30 The James' suit alleged that Gregory's emotional trauma was a natural and foreseeable consequence of witnessing his sister's violent death. 31 Based on this reasoning, Gregory's parents further alleged that the driver and the owner-operator of the garbage 20. See incfra notes and accompanying text. 21. James, 221 Neb. at 48, 375 N.W.2d at 111; Police Report by Officer John L. Hammann 1 (Aug. 10, 1983) (on-site report of the James fatality by the investigating officer). 22. Brief of Plaintiffs-Appellants at 1, James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985); Police Report, supra note 21, at Brief of Plaintiffs-Appellants at 1, James; Police Report, supra note 21, at James, 221 Neb. at 48, 375 N.W.2d at Id. 26. Id. 27. Id. 28. Brief of Plaintiffs-Appellants at 8, James. 29. James, 221 Neb. at 47, 375 N.W.2d at Id. at 47-48, 375 N.W.2d at 111; Brief of Plaintiffs-Appellants at 13, James. 31. Brief of Plaintiffs-Appellants at 14, James.

5 1987] BYSTANDER RECOVERY IN TORT collection business owed a legal duty of care to the young boy to protect him from emotional devastation. 32 The defendants, Lieb and Watts Trucking Service, Inc., demurred to the plaintiff's complaint by asserting that Nebraska did not recognize a cause of action for bystanders who witness the death or serious injury of a loved one. 33 Recalling the decision of Fournell v. Usher Pest Control Co.,34 the defendants claimed that a bystander must be within the physical "zone of danger" created by a negligent defendant or must have feared for the bystander's own safety in order to state a cause of action. 35 The trial court sustained the defendants' demurrer, accepting the argument that Nebraska law did not provide a cause of action for bystanders who, like Gregory James, had suffered emotional distress and psychic injury as a result of witnessing the violent death of a loved one. 36 On appeal, the Nebraska Supreme Court reversed the trial court and remanded the case for further proceedings in accordance with its opinion. 37 The court distinguished Fournell on its facts, and to the extent that Fournell could not be reconciled with James, Fournell was "expressly overruled. ' 38 In James, the Nebraska Supreme Court held that within certain guidelines, a bystander may recover for the negligent infliction of emotional distress. 39 By so holding, the James court indicated that a valid cause of action need no longer be predicated solely upon the plaintiffs' fears for their own safety or their location within the spatial zone of danger. 40 The court determined that the general tort theories of duty and foreseeability should govern recovery. 41 According to the James court, each future case will be evaluated as to its particular facts, and the Nebraska courts will use the announced guidelines to determine if the occasioned harm was within the realm of foreseeability. 42 Recognizing what is popularly known as the Dillon rule, the James court adopted the foreseeability test for bystander claims of 32. Id. at James, 221 Neb. at 48, 375 N.W.2d at Neb. 684, 305 N.W.2d 605 (1981). 35. Brief of Defendants-Appellees at 9, James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). 36. James, 221 Neb. at 48, 375 N.W.2d at Id. at 48-49, 375 N.W.2d at Id. at 49, 375 N.W.2d at 111. Describing the basic difference between the Fournell and James cases, the court recalled that the plaintiff in Fourneil was a "direct victim" of the defendant's negligence, while the James plaintiff alleged to be injured as a bystander to the negligent act. Id. 39. Id. at 54-55, 375 NW.2d at Id. at 54, 375 N.W.2d at Id. at 53-54, 375 NW.2d at Id. at 55, 375 N.W.2d at 114.

6 CREIGHTON LAW REVIEW [Vol. 20 emotional distress. 43 As a threshold requirement, a cause of action for bystanders' claims of emotional distress arises subsequent to a "defendant's adjudicated liability and fault for the injury or death of the victim." ' 4 4 The court reasoned that no claim for bystanders' injuries can exist unless it has been first determined that the defendant owed a duty of care to the victim. 45 Accordingly, if the defendant has not been found at fault for the victim's injuries, then "there is no 'foundation of the tortfeasor's duty of care to third parties who, as a consequence of such negligence, sustain emotional trauma.' "46 Thus, the James court required a prior adjudication of liability to fulfill the element of causation that is necessary to establish a prima facie case of negligence toward the bystander witness. 47 The second requirement articulated by the majority was that the claimed distress must have resulted from witnessing "either death or serious injury to the victim." 48 Although this second consideration may seem more arbitrary, the court reasoned that only the more intense emotions that follow the death or serious injury of a loved one would be compensable by a court. 4 9 According to the James majority, emotions that accompany lesser injuries "pale in comparison to the profound grief, fright, and shock experienced following an accidental death or serious injury." 50 In addition to the threshold elements of prior adjudicated liability and death or serious injury to the victim, the James court prospectively established two guidelines to assist plaintiffs, attorneys, and judges in evaluating the merits of future claims. 51 The first and most critical guideline involves the relationship between the plaintiff and the victim. 52 Asserting that only the closest of bonds will stir profound emotional response in bystanders when they witness the injury of another, the court will require a "marital or intimate familial relationship between the plaintiff and the victim" for a valid cause of action. 53 The court indicated that this guideline will not necessarily exclude plaintiffs outside the nuclear family of the victim; however, such persons will have a "heav[y] burden of proving a significant 43. Id. at 55, 375 N.W.2d at Id. at 51, 375 N.W.2d at Id. at 51-52, 375 N.W.2d at Id. (quoting Dillon v. Legg, 68 Cal. 2d 728, 733, 441 P.2d 912, 916, 69 Cal. Rptr. 72, 76 (1968)). 47. Id. at 51-52, 375 N.W.2d at Id. at 57, 375 N.W.2d at Id. 50. Id. 51. Id. at 55-57, 375 N.W.2d at Id. at 55, 375 N.W.2d at Id.

7 1987] BYSTANDER RECOVERY IN TORT attachment."m The second guideline announced by the court is a combination of two factors established in Dillon. 55 The more usual recovery will stem from the plaintiff's "'sensory and contemporaneous observance of the accident.'"56 In James, the court suggested that future Nebraska courts should consider such factors as "'where, when, and how the injury, to the third person entered into the consciousness of the claimant.'"57 As one last consideration, reflecting confidence in the ability of medical science to distinguish fraudulent claims of emotional distress, the court abolished the requirement that the plaintiff's emotional distress must manifest itself in a physical symptom. 58 The court reasoned that "'[t]o...require that, before one who is mentally injured may recover, he must at least regurgitate once seems... to be imposing upon the law a requirement that makes little or no sense.' 59 Dissenting, Judge Caporale, joined by Judges Boslaugh and Hastings, echoed many of the criticisms that have been sounded against the Dillon doctrine in the past. 60 The dissenters were primarily concerned with the societal cost of the majority's expansion of tort liability in Nebraska. 61 Specifically, the dissenters criticized the majority opinion for its dismissal of the "dollars and cents" argument and asserted that the majority's cited authority "dispels nothing; the costs are still there. '62 Moreover, the dissent criticized the arbitrary nature of the foreseeability approach adopted by the James majority. 63 According to the dissent, the zone of danger rule was a preferable alternative because, although it can also be arbitrary, the rule "at least had the virtue of being susceptible to more objective proof." '64 Finally, the dissent criticized the "dispersive nature" of the James holding. 65 Judge Caporale suggested that the leap from the zone of danger to 54. Id. at 56, 375 N.W.2d at Dillon v. Legg, 68 Cal. 2d 728, , 441 P.2d 912, 920, 69 Cal. Rptr. 72, 80 (1968). 56. James, 221 Neb. at 56, 375 N.W.2d at 115 (quoting Dillon, 68 Cal. 2d at , 441 P.2d at 920, 69 Cal. Rptr. at 80). 57. Id. at 57, 375 N.W.2d at 116 (quoting Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295, 1302 (1978)). 58. Id. at 58, 375 N.W.2d at Id. (quoting Fournell v. Usher Pest Control Co., 208 Neb. 684, 697, 305 N.W.2d 605, 611 (1981) (Krivosha, C.J., dissenting)). 60. Id. at 60, 375 N.W.2d at 117 (Caporale, J., dissenting). 61. Id. 62. Id. at 60, 375 N.W.2d at (Caporale, J., dissenting). 63. Id. at 61, 375 N.W.2d at 118 (Caporale, J., dissenting). 64. Id. 65. Id.

8 CREIGHTON LAW REVIEW [Vol. 20 the foreseeability test left the law in a "confusing state," indicating that he would have preferred a less expansive decision that adhered more closely to the fact situation in James. 66 BACKGROUND American courts have not always been receptive to claims of emotional distress or mental injury. 67 Before medical science fully understood purely emotional trauma, harm to the human psyche could be compensated at law only as an element of damages arising from a physically injurious tort. 68 During the last half century, coincident with a dynamic expansion in other areas of tort law, American courts have now begun to recognize claims based solely upon emotional distress. 69 While intentional infliction of emotional distress has been well recognized by the legal system as an injurious tort meriting compensation, negligently inflicted emotional distress has often been criticized as too tenuous a claim for relief. 70 Negligently inflicted emotional distress, like any negligence claim, rests upon the concepts of duty and foreseeability. 7 1 American and English courts during the early part of the twentieth century did not commonly recognize a duty to protect others from fright or mental trauma. 72 Similarly, these courts did not view an emotional breakdown as a foreseeable consequence of a defendant's negligent act. 73 Bystanders to tortious accidents were generally thought to be too remote from the incident to have a protectable interest. 74 Consequently, Nebraska courts, and most other state courts, came to recognize the injured victim's claims for negligently inflicted emotional distress long before the courts allowed liability to extend to bystander witnesses Id. 67. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. FAM. L. 163, 164 (1976). 68. Note, Limited Liability for the Negligent Infliction of Emotional Distress: The "Bystander Recovery" Cases, 54 S. CAL. L. REV. 847, (1981). 69. Comment, Negligent Infliction of Emotional Distress: A Proposal for a Recognized Tort Action, 67 MARQ. L. REV. 557, 557 (1983). 70. See Leibson, supra note 67, at 166; Millard, Intentional and Negligently Inflicted Emotional Distress: Toward a Coherent Reconciliation, 15 IND. L. REV. 617, 620 (1982); Developments, supra note 13, at Dillon, 68 Cal. 2d at -, 441 P.2d at , 69 Cal. Rptr. at Leibson, supra note 67, at Id. at Comment, supra note 69, at James, 221 Neb. at 50, 375 N.W.2d at 112 (citing Rasmussen v. Benson, 133 Neb. 449, 458, 275 N.W. 674, 679 (1937) as an example of a Nebraska case that permitted recovery for emotional distress nearly five decades before the James court allowed recovery to extend to bystander/plaintiffs).

9 1987] BYSTANDER RECOVERY IN TORT Bystander recovery for emotional distress has historically been based on one of three theories: the impact rule, the zone of danger test, or the foreseeability test. 76 Because courts that currently apply a foreseeability test have typically done so only after abrogating some version of the zone of danger test, which in turn was likely adopted only after an abandonment of impact requirements, these different theories are commonly analyzed as steps in a progression toward more expansive recovery. 77 Commentaries have thus examined the progression from one theory to the next and usually conclude by supporting one of the existing theories or extolling the merits of a proposed next step. 78 In contrast, this section compares recent judicial applications of each theory in an effort to determine the present viability of each rule. IMPACT RULE The first recognized theory by which a plaintiff could recover for negligently inflicted emotional distress was the impact theory. 79 This theory prevented plaintiffs from recovering for emotional traumas unless they had first proved a contemporaneous physical impact or injury occasioned by the negligent tortfeasor. 80 According to this theory, "the infliction of anguish by the negligent injury of another, without physical trauma to the plaintiff would be irremedial. But where the defendant's negligence occasions some personal physical injury to the plaintiff, no matter how slight, the plaintiff may recover for fright, shock, and mental anguish." 8 ' However, this rule has sometimes led to absurd pleadings by plaintiffs attempting to satisfy the physical impact requirement. 82 Courts favored the impact rule rule because it prevented "a virtual avalanche of cases for many situations and cases hitherto unrecoverable." 8 3 The impact rule is almost universally condemned by modern-day 76. Developments, supra note 13, at See Developments, supra note 13, at See Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U. FLA. L. REV. 333, 347 (1984); Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries, 35 HAS- TINGS L.J. 477, 500 (1984); Comment, supra note 13, at Developments, supra note 13, at 137. This Comment traces the origin of the impact rule to an English case, Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222, (P.C. 1888). The rule was short-lived in English courts but has "stubbornly survived" in this country. Id. 80. Sinn v. Burd, 486 Pa. 146, -, 404 A.2d 672, 675 (1979). 81. Greenberg v. Stanley, 51 N.J. Super. 90, 98, 143 A.2d 588, 597 (1958). 82. See W. PROSSER, THE LAw OF TORTS 54, at (4th ed. 1971) (listing instances in which courts have found physical "impact" in even the most trivial physical intrusions). 83. Knaub v. Gotwalt, 422 Pa. 267, 271, 220 A.2d 646, 647 (1966).

10 CREIGHTON LAW REVIEW [Vol. 20 tort law commentators, but it is not an extinct rule. 4 A minority of state courts remain faithful to the impact rule for the same reasons that were originally cited in support of it: mistrust in medical science's ability to subtantiate purely emotional damages and a desire to keep a tight rein on the expansion of tort liability. 8 5 To these courts, "a rule is not superior to its alternatives simply because it allows recovery to more plaintiffs, if there is no connection between the nature of the damages and the reason for allowing the additional plaintiffs to recover them. '8 6 Saechao v. MatsakounK 7 is the most recent case to adhere to the impact rule for bystander claims of emotional distress. 88 The young Ou Fou Saechao and his siblings were outside their apartment complex while the defendant was receiving a lesson on how to park her car. 8 9 While attempting to park her car, Matsakoun drove over the curb and crushed the toddler, Ou Fou, against a building. 90 The decedent's brother, Kae Fou Saechao, was also injured in the accident, while a second brother and a sister escaped physical harm. 91 The plaintiffs alleged that all three children suffered from "extreme emotional trauma" as a result of witnessing their brother's violent death. 92 The trial court found that Kae Fou had stated a valid claim for emotional distress arising from the incident, but that the sister and second brother were precluded from recovery because they had not been physically touched by the vehicle. 93 The Oregon Court of Appeals narrowly affirmed the trial court, holding that "[t]he impact rule seems to us to reflect the best policy option. ' 94 The court conducted an extensive analysis of the various theories that may support a bystander's claim for emotional distress, including the impact rule, the zone of danger rule, and the foreseeability test. 95 The court also examined case law from other jurisdictions that applied the competing tests, yet it remained unpersuaded 84. Leibson, supra note 67, at 168 (stating that "almost unbelievably, [the impact rule] has managed to survive to the present day."). 85. Comment, supra note 69, at 559. Arkansas, Colorado, Florida, Indiana, Kansas and Kentucky maintain the impact rule. Id. These last remaining "impact" jurisdictions may be awaiting only the opportunity to revise the rule. Florida, for example, has since become a foreseeability jurisdiction. Champion v. Gray, 478 So. 2d 17, 20 (Fla. 1985). 86. Saechao v. Matsakoun, 78 Or. App. 341, -, 717 P.2d 165, 169 (1986) Or. App. 341, 717 P.2d 165 (1986). 88. Id. at -, 717 P.2d at Id. at -, 717 P.2d at Id. 91. Id. 92. Id. 93. Id. at -, 717 P.2d at Id. at -, 717 P.2d at Id. at -, 717 P.2d at

11 1987] BYSTANDER RECOVERY IN TORT that Oregon should vary from its traditional usage of the impact rule. 96 To the Saechao majority, there was no significant difference between the zone of danger analysis and the foreseeability test as applied to the facts before it. 97 The court found nothing distinguishable between the tests because the zone of danger requirements were roughly equivalent to the "proximity" and "contemporaneous observance" guidelines of the Dillon test, and as brothers, the plaintiff and the victim naturally met the "close relationship" element. 98 Furthermore, the Saechao court found that adoption of either the zone of danger analysis or the foreseeability test would "run afoul of [a prior court's] admonition against recognizing new causes of action for indirect injuries resulting from direct injury to another." 99 From the court's point of view, adoption of either of the more expansive tests was tantamount to the creation of a new cause of action, rather than an expansion of an element of damages under pre-existing law. 100 The Saechao court proved unwilling to "establish a new cause of action not previously recognized in Oregon" and thus, Oregon remains an impact jurisdiction. 10 ' As articulated by the Oregon Court of Appeals, one compelling advantage of the impact rule is that the rule "creates a clear relationship between compensability and the plaintiff's being a victim of a breach of duty."' 10 2 While this may be true, few modern jurisdictions would agree that Kae Fou Saechao could not be compensated for his emotional devastation unless he was physically harmed by the defendant's car Many in fact would extend recovery to the siblings who were in no physical peril but nonetheless were traumatized by the sight of their infant brother's tragic death This case is a good example of the strict limits that the impact rule places on recovery for emotional distress and of one court's steadfast refusal to join the 96. Id. (analyzing the three traditional categories and stating that a single case, Paugh v. Hanks, 6 Ohio St. 2d 72, -, 451 N.E.2d 759, 767 (1985), represents a fourth, most expansive genre). 97. Id. at -, 717 P.2d at Id. 99. Id. The Saechao majority stated that the adoption of either the zone of danger rule or the foreseeability test would be inconsistent with prior rulings. Id Id Id Id For a scathing review of the impact rule as applied in this case, see Saechao v. Matsakoun, 78 Or. App. 341, -, 717 P.2d 165, 170 (1986) (Warren, J., dissenting) (stating that "[iln picking the impact rule, the majority not only ignores Oregon precedents, bilt also clings to a principle which has been widely repudiated and leaves Oregon tort law in an archaic position.") Leibson, supra note 67, at

12 CREIGHTON LAW REVIEW [Vol. 20 "emerging trend" of recovery in the United States ZONE OF DANGER English Development Realizing that the impact rule arbitrarily excluded many cases meriting recovery, a turn-of-the-century English court made the first inroad toward liberalizing the impact rule in Dulieu v. White & Sons.1 6 Although the court did not describe its requirements as a zone of danger test, Dulieu formed the foundation of the new rule. 0 7 The Dulieu court varied from the standard impact rule and articulated that a bystander had stated a valid cause of action for negligently inflicted emotional distress if: (1) the plaintiffs suffered physical ills resulting from the claimed emotional distress; (2) the plaintiffs were located so that they might have been physically harmed by the negligence; and (3) the plaintiffs experienced emotional anxiety attributable solely to fear for their own well-being.' 08 A subsequent English court attempted to remove the harshness of the third requirement by allowing recovery for the plaintiff whose anxiety was triggered solely by fear for the safety of some third person.' 0 9 This adjustment in the recovery mechanism created the version of the zone of danger test adopted by the Restatement (Second) of Torts." 0 This modification of the Dulieu analysis became necessary when it was realized that application of the rule led to an anom See Saechao, 78 Or. App. at -, 717 P.2d at 171 (Warren, J. dissenting). See also Bell, The Bell Tolls: Toward Full Tort Recovery For Psychic Injury, 36 U. FLA. L. REV. 333, (proposing expansive restructuring of tort law principles towards recovery for negligently inflicted emotional distress) K.B. 669, 675 (1901) Developments, supra note 13, at 143. This Comment traced the source of the zone of danger test to "Kennedy's dictum' in the Dulieu decision. Id. This original version of the zone of danger test applied only to plaintiffs who suffered emotional trauma as a result of fear for their own well-being. Dulieu, 2 K.B. at 675. As Justice Kennedy opined: There is, I am inclined to think, at least one limitation. That shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself. A has, I conceive, no legal duty, not to shock B's nerves by the exhibition of negligence towards C. Id Note, supra note 68, at Hambrook v. Stokes, 1 K.B. 141, 157 (1925) RESTATEMENT (SECOND) OF TORTS A (1965). Section 436 provides: (1) If the actor's conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional distrubance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability. (2) If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that

13 1987] BYSTANDER RECOVERY IN TORT alous result; parents who feared for their own well-being could be compensated, those who feared solely for the safety of their children could not The American Test American courts looking for a more expansive rule in the area of bystanders' claims were quick to adopt the English improvements. 112 One leading case, Waube v. Warrington, n3 combined the English zone of danger concepts as announced in Hambrook v. Stokes" 4 with the duty analysis prescribed by Judge Cardozo in Palsgraf v. Long Island Railroad 1 5 to create the American version of the zone of danger test that remained unchallenged for over thirty years."1 6 Waube criticized the Hambrook analysis for its reliance upon proximate causation as the basis of the zone of danger rule, preferring to impose liability only when a duty of care had been violated." 7 Applying the rationale expressed in Palsgrj, a plaintiff located within the mythical zone of danger was entitled to recovery for emotional distress because the negligent defendant had owed all foreseeable plaintiffs a duty of due care not to endanger their physical wellsuch harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability. (3) The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence. Id Section 346A provides: "If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance." Id. 436A Hambrook v. Stokes, 1 K.B. 141, 151 (1925) (revealing this anomaly). The Hambrook court commented: [Adoption of the Dulieu rule] would result in a state of the law in which a mother, shocked by fright for herself, would recover, while a mother shocked by her child being killed before her eyes, could not, and in which a mother traversing the highways with a child in her arms could recover if shocked by fright for herself while if she could be cross-examined into an admission that the fright was really for her child, she could not. Id. at See, e.g., Bowman v. Williams, 164 Md. 357, -, 165 A. 182, 184 (1933) (compensating a plaintiff whose fear stemmed from witnessing a runaway truck collide with his house); Rasmussen v. Benson, 133 Neb. 449, 458, 275 N.W. 674, 679 (1937) (extending recovery to a farmer who was emotionally traumatized by the loss of his dairy herd); Waube v. Warrington, 216 Wis. 603, -, 258 N.W. 497, 501 (1935) (denying recovery to a plaintiff who witnessed her child being run over in the street) Wis. 603, 258 N.W. 497 (1935) K.B. 141, 157 (1925) N.Y. 339, -, 162 N.E. 99, 101 (1928) Waube, 216 Wis. at -, 258 N.W. at Id. at -, 258 N.W. at 500. The court stated that "we cannot escape the conclusion that the determination in the Hambrook Case is incorrect, both in its initial approach and its conclusion." Id.

14 CREIGHTON LAW REVIEW [Vol. 20 being. 118 Plaintiffs not located in the zone were too remote to have a protectable interest because their physical safety had never been endangered by the negligent actions of the defendant-tortfeasor." 9 Thus, the American version of the zone of danger test maintained an essential element of the impact rule: that bodily impact is the protectable interest, and mental anguish that may accompany such an impact is compensable only to the extent that it stems from the fear of physical harms. 120 Foreseeability of the harm caused, the critical element in the subsequent Dillon test, is of little importance in a zone of danger analysis, because even though it is clearly foreseeable that someone outside the zone may be emotionally devastated by witnessing an accident, the negligent defendant has violated no duty of care to prevent physical harm from injuring the plaintiff. 121 The zone of danger test, as announced in Waube, remains the majority rule in the United States and is supported by the Restatement (Second) of Torts.1 22 Courts that have not followed the recent trend toward a foreseeability test for bystander claims of emotional distress generally prefer the predictability of the zone of danger test and the outer boundary of recovery that the test creates. 123 However, critics of the test typically denounce its rigidity and arbitrariness, and especially denounce the version of the test that allows compensation for plaintiffs who fear for their own safety while barring recovery for those who experience the selfless anguish of fear for a loved one. 124 This last element has subjected the zone of danger test to biting commentary: 118. See id. at -, 258 N.W. at Id See id Id. (holding that "[lt is our conclusion that [a defendant's duty and a plaintiff's right] can neither justly nor expediently be extended to any recovery for physical injuries sustained by one out of the range of ordinary physical peril."). Id RESTATEMENT (SECOND) OF TORTS 313 (1965). Section 313 provides: (1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. (2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other See Note, supra note 68, at 858. See also Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm - A Comment on the Nature of Arbitrary Rules, 34 U. FLA. L. REV. 477, 490 (1982) (favoring the zone of danger rule for its "internal consistency" and the way it "neatly dovetails liability and damages") See Leibson, supra note 67, at 172, 176.

15 1987] BYSTANDER RECOVERY IN TORT The obvious fallacy in this reasoning is that it presupposes that normal people do not suffer lasting shock from fear for the safety of persons other than themselves, and that it is unreasonable to expect the average person to foresee any injuries based on fear for the safety of another. As a result the zone of risk test, like the impact test, turns out to be an arbitrary one without rational foundation, and tends to lead to decisions equally as incongruous as those arrived at when the impact test is applied. 125 As stated, not all courts or commentators agree with the critics of the common zone of danger rule, and the rule remains viable in many jurisdictions. 126 A recent and representative example of the zone of danger application is Bovsun v. Sanperi, 127 in which a mother and daughter brought an action to recover for emotional distress that they suffered after witnessing a negligently caused auto accident which harmed a loved one. 2 8 Their car was stopped along the roadside as a result of mechanical difficulties, while Jack Bovsun, the husband and father, was at the rear of the vehicle effecting repairs A car driven by Gary Sanperi negligently collided with the rear of the Bovsun vehicle, pinning Bovsun's legs between the cars and causing him extensive injuries Neither of the plaintiffs, who had remained inside the car, saw the accident; however, they were thrown about the compartment by the impact, and each claimed to have been "instantly aware" of the victim's injuries.'1 3 The trial court, finding that they were not within the zone of danger, excluded the mother and daughter's claim of negligently inflicted emotional distress and dismissed their action.' 3 2 The New York Court of Appeals held that New York would adhere to the zone of danger test 1 33 as intimated by the holding in Tobin v. Grossman. 3 4 The Bovsun court followed the Tobin admoni Id. at See Bovsun v. Sanperi, 61 N.Y.2d 219, -, 461 N.E.2d 843, 847, 473 N.Y.S.2d 357, 360 (1984) (citations omitted) (citing cases from the jurisdictions using the zone of danger analysis as of 1984) N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984) Id. at 225, 461 N.E.2d at 877, 473 N.Y.S.2d at Id Id Id Id. at 226, 461 N.E.2d at 845, 473 N.Y.S.2d at Id. at , 461 N.E.2d at 848, 473 N.Y.S.2d at N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969). Tobin is sometimes viewed as New York's adoption of the zone of danger test. Developments, supra note 13, at 148. The Bovsun court, however, distinguished Bovsun from Tobin: "(I]n Tobin we were not, however, required to confront the precise issue presented to us for the first time in the two appeals now before us inasmuch as the plaintiff in Tobin had not been within the zone of danger of bodily harm." Bovsun, 61 N.Y.2d at 228, 461 N.E.2d at 847, 473 N.Y.S.2d at 361.

16 CREIGHTON LAW REVIEW (Vol. 20 tion against creation of a new duty in tort law, namely a duty that protects foreseeable plaintiffs from the emotional harms that result from witnessing an injury to a loved one. 135 The court reasoned that recovery under the zone of danger rule was "premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained."' 1 36 Thus, allowing recovery under the zone of danger rule was, in the court's opinion, a "broadening of the duty concept," but adopting the foreseeability test would be "the creation of a duty."' 1 37 The Bovsun court further held that public policy demanded the limitation of tort liability and rejected the common criticisms of the zone of danger test: (1) that it will lead to fraudulent claims, and (2) that the nature of the requisite proof makes it too speculative to be a valid cause of action. 138 After a full and complete examination of the foreseeability test and the holding in Dillon v. Legg, 139 the New York court rejected Dillon as too expansive and continued to rely on the zone of danger analysis to adjudicate "serious and verifiable" emotional disturbances that are proximately caused by the defendant's negligence in the injury of a family member. 140 Having been located within the realm of the defendant's negligence, in fact, suffering minor physical injuries from the impact of the accident, the Bovsuns' claim was reinstated on remand to determine whether their claim satisfied the remaining criteria of the adopted version of the zone of danger test. 141 Dillon v. Legg and the Foreseeability Test Although the zone of danger test was admittedly arbitrary, many courts favored the test's creation of an undeniable and irrefutable limit on a negligent defendant's potential liability. 142 As the California Supreme Court stated in Amaya v. Home Ice, Fuel & Supply Co., 1 43 there were "compelling moral and socio-economic reasons [which] require that a negligent defendant's liability have some stop Bovsun, 61 N.Y.2d at 230, 461 N.E.2d at 847, 473 N.Y.S.2d at Id Id Id. at 232, 461 N.E.2d at 849, 473 N.Y.S.2d at Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) Bovsun, 61 N.Y.2d at 233, 461 N.E.2d at 849, 473 N.Y.S.2d at Id. at 225, 235, 461 N.E.2d at 844, 850, 473 N.Y.S.2d at 358, See Tobin, 24 N.Y.2d at , 249 N.E.2d at , 301 N.Y.S.2d at (discussing the "problem of unlimited liability" and a policy requirement of "reasonable circumscription" to claims of tort liablity) Cal. 2d 295, 379 P.2d 513, 29 Cal. Rptr. 33 (1963).

17 1987] BYSTANDER RECOVERY IN TORT ping point." 14 4 Nevertheless, the rigidity of the test frustrated some jurists who lamented the zone of danger test's survival "partly due to the sheer inertia caused by the doctrine of stare decisis, and the apparent reluctance of appellate courts to disturb the status quo. 145 The Amaya decision, California's 1963 reaffirmation of the zone of danger rule, was subjected to a vigorous dissent which foreshadowed that court's eventual abrogation of the rule some five years later. 146 In Dillon, the California Supreme Court was presented with a factual situation that clearly demonstrated the shortcomings of the zone of danger test, and as such became the vehicle by which the test was abrogated. 147 Erin Dillon and her sister Cheryl were crossing a road when Erin was struck and killed by a vehicle negligently operated by the defendant, David Legg. 148 The children's mother, Margery Dillon, alleged that she too "was in close proximity to the... collision and personally witnesse[d] said collision."' 1 49 Relying on the California statement of the zone of danger test, that no cause of action existed "unless the complaint alleges that the plaintiff suffered emotional distress, fright or shock as a result of fear for his own safety," the defendants moved for judgment on the pleadings against 50 the mother's claim. The trial court granted the motion and dismissed Margery Dillon's claim for negligently inflicted emotional distress. 151 The California Supreme Court analyzed the zone of danger test by illustrating the incongruity of the test as it applied to the Dillon circumstances: The case thus illustrates the fallacy of the rule that would deny recovery in one situation and grant it in the other. In the first place, we can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident. 152 Having taken notice of the potential weaknesses of the zone of danger test, the Dillon court proceeded to review the rationale that 144. Id. at -, 379 P.2d at 524, 29 Cal. Rptr. at Id. at -, 379 P.2d at 526, 29 Cal. Rptr. at 46 (Peters, J., dissenting) Id. at -, 379 P.2d at , 29 Cal. Rptr. at (Peters, J., dissenting) Developments, supra note 13, at 147 (stating that Dillon created "the ideal factual setting for abandoning the zone of danger rule.") Dillon, 68 Cal. 2d at -, 441 P.2d at 914, 69 Cal. Rptr. at Id Id. at -, 441 P.2d at 915, 69 Cal. Rptr. at 75 (relying on the rule as stated in Reed v. Moore, 156 Cal. App. 2d 43, 45, 319 P.2d 80, 81 (1957)) Id Id.

18 CREIGHTON LAW REVIEW (Vol. 20 prior courts had commonly used to support the zone of danger test: (1) the test helped prevent fraudulent claims for negligently inflicted emotional distress, and (2) the test fixed definite limits to recovery for a defendant's single negligent act The Dillon court rejected the idea that judges and jurors could be easily deceived by fraudulent claims, stating that "such fallibility, inherent in the judicial process, offers no reason for substituting for the case-by-case resolution of causes an artificial and indefensible barrier."' 1 54 According to the Dillon court, the possibility of an occasional fraud did not justify the exclusion of an entire class of claims that merited a judicial remedy. 155 In analyzing the need for a limit in tort liability, the Dillon court noted that the familiar principles of tort would restrict claims of negligently inflicted emotional distress to those that were reasonably foreseeable. 156 Accordingly, a defendant would be liable only to those plaintiffs who were owed a duty of care, and such duty was to be ascertained by the reasonable foreseeability of the occasioned harm. 157 In light of these general principles, the "defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent, in the first instance."' 15 8 To assist future courts in determining which harms to a bystander's emotional well-being are reasonably foreseeable, the Dillon court outlined the now famous guidelines: (1) Whether plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. 159 These guildelines embody the foreseeability test for bystander claims of emotional distress and serve as the foundation for subsequent courts to liberalize recovery for plaintiffs beyond the customary zone 153. Id. at -, 441 P.2d at , 69 Cal. Rptr. at Id. at -, 441 P.2d at 918, 69 Cal. Rptr. at Id. at -, 441 P.2d at , 69 Cal. Rptr. at Id. at -, 441 P.2d at 919, 69 Cal. Rptr. at Id. See Prosser, PalsgrafRevisited, 52 MICH. L. REV. 1, 9-11 (1953) (explaining the interrelationship that Judge Cardozo created in Palsgraf between duty and foreseeability) Dillon, 68 Cal. 2d at -, 441 P.2d at , 69 Cal. Rptr. at Id. at , 441 P.2d at 920, 69 Cal. Rptr. at 80.

19 1987l BYSTANDER RECOVERY IN TORT of danger. 160 Sinn v. Burd: A Dillon Progeny A recent comprehensive adoption of the foreseeability test for bystander claims of emotional distress occurred in the Pennsylvania Supreme Court case of Sinn v. Burd.1 6 ' The Sinn court was presented with the now familiar fact scenario: a mother, JoAnne Sinn, witnessed a negligently driven automobile as it struck and killed her daughter, Lisa.' 62 A second daughter narrowly escaped injury in the accident The trial court sustained the defendant's demurrer to the mother's cause of action because, unlike her daughter, the mother had not been located in the fictitious zone of danger.' x In the process of analyzing bystander claims of emotional distress, the Pennsylvania court identified five arguments against extending recovery to the remote bystander: (1) medical science's alleged difficulty in linking emotional traumas to their causal event, 6 5 (2) the likelihood of an increase in fraudulent or exaggerated claims, 6 6 (3) the prospect of flooding courts with litigation, 67 (4) the unduly burdensome duty imposed on the defendant, 68 and (5) the difficulty in defining a terminal point to the defendant's liability. 169 Each of these five familiar concerns was in turn examined and dismissed by the Sinn court: "We are satisfied that public policy demands that we not permit the application of the zone of danger concept to deny recovery merely because of the nature of the damage."' 170 In specific reference to Sinn's cause of action, the court announced that "[w]here the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effect is a foreseeable injury.' 17 1 Sinn's cause of action, therefore, was remanded for trial, where a jury would have the opportunity to determine the compen Comment, supra note 69, at Pa. 146, -, 404 A.2d 672, 686 (1979) Id. at -, 404 A.2d at Id Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id. at -, 404 A.2d at Id.

20 CREIGHTON LAW REVIEW [Vol. 20 sability of her injuries. 172 Paugh v. Hanks: A Dillon Expansion Although most courts that have adopted the foreseeability approach toward bystander claims have followed the Dillon guidelines rather closely, some jurisdictions have attempted to modify the test. 73 One such instance occurred soon after the Dillon decision in Rodrigues v. State. 174 Although the Hawaii Supreme Court has subsequently limited the Rodrigues holding, 175 its principles have been revived in the recent Ohio case of Paugh v. Hanks. 176 In Paugh, a married couple initiated a claim for emotional distress allegedly caused by three unrelated automobile collisions with their home. 77 Although no family member was physically injured in any of the three incidents, Lauri Paugh claimed to have been emotionally devastated by fear for her children's safety. 178 Her emotional trauma did not manifest itself in physical symptoms; however, Lauri Paugh suffered from repeated fainting spells and hyperventilation. 179 Her husband, William, claimed a loss of his wife's services and a loss of consortium.' 80 The Ohio Supreme Court abandoned the requirement of a physical manifestation of the mental injury, a last remnant of the impact rule.' 8 ' In allowing for the possibility of bystander claims of emotional distress without an objectively observable physical symptom, the Paugh court rejected the theory as expressed by the Massachusetts Supreme Court in Payton v. Abbott Labs.' 8 2 This theory provides that a physical manifestation of an alleged emotional injury evidences the seriousness and genuineness of a claim.' 8 3 The Paugh 172. Id Comment, supra note 69, at Haw. 156, -, 472 P.2d 509, 513 (1970) Leibson, supra note 67, at 184 (claiming that a recent Hawaii case, Kelley v. Kokoa Sales & Supply, Ltd., 56 Haw. 204, 532 P.2d 673 (1975), "seems to have taken a step backward."). The Kelley court refused to extend recovery to a plaintiff residing in California for the negligently caused death of his daughter and grandchild in Hawaii. Kelley, 56 Haw. at -, 532 P.2d at 676. Professor Leibson, critical of the finding that Kelley was too remote from the tragic accident, stated that "[s]uch artificial barriers to recovery have no place in the law." Leibson, supra note 67, at 185. "The overwhelming likelihood is that Mr. Kelley would have sustained the same reaction no matter where he was at the time of the accident." Id Ohio St. 3d 72, -, 451 N.E.2d 759, 765 (1983) Id. at N.E.2d at Id Id. at N.E.2d at Id Id. at N.E.2d at Mass. 540, -, 437 N.E.2d 171, 174 (1982) Paugh, 6 Ohio St. 3d at -, 451 N.E.2d at 764.

21 1987] BYSTANDER RECOVERY IN TORT court relied in part on the Sinn analysis which, in turn, relied on the ability of medical science to trace an emotional injury to its source event The Paugh court held that "a cause of action may be stated for the negligent infliction of serious emotional distress without the manifestation of a resulting physical injury. Proof of a resulting physical injury is admissible as evidence of the degree of emotional 8 5 distress suffered.' The Paugh court further defined its foreseeability test by requiring that compensable emotional distress be "serious.' Under the 86 Ohio rule, a plaintiff with a predisposition toward emotional devastation would not state a valid cause of action unless a person with an objectively reasonable mental constitution would also be unable to adequately cope with the defendant's negligent act.' 8 7 This requirement, according to the court, effectively substituted for the physical manifestation requirement a more "reliable safeguard" in screening out illegitimate claims Hence, the Ohio court recognized that "[s]erious emotional distress can be as severe and debilitating as physical injury and is no less deserving of redress," and yet remained unwilling to compensate "trifling mental disturbance, mere upset or hurt feelings.' 8i 9 As a final departure from the Dillon test, the Paugh court denied that the bystander's emotional trauma must be triggered by death or serious injury to the victim. 190 Although the Dillon court held that "[iln the absence of a primary liability of the tort-feasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties," 19 ' the Paugh court reasoned that a valid cause of action could exist "where the plaintiff-bystander reasonably appreciated the peril which took place, whether or not the victim suffered actual physical harm."' 92 Because neither physical injury to a discernible victim nor physical manifestation of the alleged emotional trauma was required by the Ohio court, Lauri Paugh's claim of negligently inflicted emotional distress and William Paugh's claim of loss of consortium were remanded to the 184. See id. at -, 451 N.E.2d at 765 (quoting Sinn, 486 Pa. at -, 404 A.2d at 678) (finding that "[a]dvancements in modern science lead us to... conclude that psychic injury is capable of being proven despite the absence of a physical manifestation of such injury.") Id Id Id. This description of serious emotional injury stems from the Rodrigues decision. Id Id Id Id. at -, 451 N.E.2d at Dillon, 68 Cal. 2d at -, 441 P.2d at 916, 69 Cal. Rptr. at Paugh, 6 Ohio St. 3d at -, 451 N.E.2d at 767.

22 CREIGHTON LAW REVIEW [Vol. 20 trial court Paugh stands as the most permissive of the Dillon progeny and, as such, has been labeled as a fourth theory of recovery. 9 4 Whether the Paugh decision is an independent rule or the most expansive adoption of the Dillon guidelines, it has yet to develop a following in other jurisdictions. 195 The Nebraska Supreme Court and many other jurisdictions have expressly denied that a plaintiff may recover for emotional trauma suffered by witnessing a noninjurious accident. 196 Thus, at this point, it remains unclear whether the Paugh holding is an abberation of the foreseeability test or the coming trend in bystander recovery for emotional distress NEBRASKA'S RECOGNITION OF EMOTIONAL DISTRESS Nebraska first recognized a claim for negligently inflicted emotional distress in Hanford v. Omaha & CB. Street Railway. 198 In Hanford, a pregnant woman was alarmed by a streetcar's collision with the streetcar she was about to board.' 9 9 Although damage to the vehicles was negligible, and the plaintiff herself was never physically touched, she was startled into leaping backwards and falling She became sick almost immediately and three days later suffered a miscarriage At trial, the plaintiff alleged that her illness and subsequent miscarriage had been precipitated by the incident with the defendant's streetcar The defendant railway line argued for a jury instruction that would transform the issue into a question of fact: You are instructed that if you believe from the evidence that, at the time of the collision in question, plaintiff became frightened, and received a nervous shock, and that the subsequent miscarriage of the plaintiff was due to and caused by the mental fright and nervous shock which the plaintiff suf Id. at -, 451 N.E.2d at See Saechao, 78 Or. App. at -, 717 P.2d at See id.; Reidy, Negligent Infliction of Emotional Distress in Illinois: Living in the Past, Suffering in the Present, 30 DE PAUL L. REV. 295, 307 (1981) James v. Lieb, 221 Neb. 47, 51, 375 N.W.2d 109, 113 (1985) See Developments, supra note 13, at (analyzing the national trend in bystander claims of emotional distress and projecting advancements in the future) Neb. 423, , 203 N.W. 643, (1925) Id. at 425, 203 N.W. at Id Id. The Hanford court made an extensive analysis of case law addressing emotional injuries, including no fewer than seven cases in which emotional distress allegedly manifested itself in a woman's miscarriage. Id. at , 203 N.W. at The cases were split as to whether a miscarriage constituted the "bodily injury" necessary to support a cause of action for negligence. Id Id. at 425, 203 N.W. at 644.

23 1987] BYSTANDER RECOVERY IN TORT fered as a result of the collision, then, in that event, the plaintiff cannot recover, and your verdict must be for the defendant Following this instruction, the jury would have been required to determine whether the miscarriage resulted from the fall, which would be compensable, or from the anxiety that accompanied the near accident, which would not be compensable In essence, this proposed instruction was a request for the court to adopt the "impact rule" of recovery Under the impact rule, compensation for mental injuries was predicated upon some sort of bodily contact between the plaintiff and the forces of harm set in motion by the defendant's negligence The rule was established as an arbitrary limitation on recovery and was thought to be a reasonable method for separating valid from spurious claims The Hanford court chose, however, to skip this usual first step requiring "impact" in the progression toward bystander recovery by refusing to find a reversible error for the omission of the requested jury instruction at the trial level. 208 The court viewed the negligent collision, the consequent fright, and the subsequent miscarriage to be an uninterrupted causal chain of events The court opined that "if defendant's negligence was the proximate cause of fright, and fright, in natural and probable sequence, the proximate cause of physical injury, the chain of causation is complete, and fright is not an independent cause. '210 Accordingly, the Hanford court held that a physical impact upon the victim's body was not a prerequisite to recovery for emotional distress; however, a physical manifestation of the emotional impact was still required The Hanford decision was bolstered by the Nebraska Supreme Court's express following of the Hanford rule six years later in Netusil v. Novak. 212 In Netusil, the court reversed a directed verdict against a plaintiff who suffered "nervous prostration" from the growls and snarls of a vicious dog The court cited Hanford, stat Id. at 427, 203 N.W. at See id See supra notes and accompanying text Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 GEO. L.J. 1237, (1971) See id. at Hanford, 113 Neb. at 426, 203 N.W. at Id. at , 203 N.W. at Id Id. at 439, 203 N.W. at 650. The Hanford court reasoned: "We do not deem it a logical deduction that because there can be no recovery for mere fright, ergo, there can be none for the consequences of fright." Id. at 437, 203 N.W. at Neb. 751, , 235 N.W. 335, 337 (1931) Id. at 755, 757, 235 N.W. at 337, 338.

24 CREIGHTON LAW REVIEW [Vol. 20 ing that "we have heretofore held that there is a liability for damages for physical injuries which are proximately caused by fright and terror produced by one who owes a legal duty to the one injured. '214 Netusil offered no insight as to what constituted "nervous prostration"; however, the case did evidence the court's willingness to apply the Hanford rule to claims of negligently inflicted emotional distress that generated a less sympathetic reaction than that in Hanford. 215 The Netusil court "reluctantly reach[ed] the conclusion that there was liability. '21 6 The Nebraska Supreme Court's next opportunity to refine its policy toward claims of purely emotional harm occurred in the case of Rasmussen v. Benson Rasmussen involved an action brought by a dairy farmer who had purchased bran at a farm sale. 218 When the plaintiff fed the bran to his herd, the cattle became very ill; most of the stock eventually died At the trial, it was determined that the bran had been laced with arsenic and was intended to be used for insect control. 220 The defendant was found liable not only for the death of the herd and the ruin of the plaintiff's business brought about by his negligent sale of the poisoned bran, but also for the "decompensated heart" and nervous symptoms that eventually resulted in the plaintiff's death The Nebraska Supreme Court affirmed the Rasmussen holding, stating: A mental shock or disturbance sometimes causes injury or illness to the body, especially the nervous system. Now, if the shock or fright was a natural consequence of what was brought about by the circumstances of the loss of Rasmussen's business - the death of his livestock - then such nervous shock was the proximate cause of Rasmussen's physical and mental condition that led to his death. 222 However, the Nebraska Supreme Court had yet to hear a case in which a bystander made a claim of emotional distress caused by the witnessing of a dramatic accident Id. at , 235 N.W. at Id. at 756, 235 N.W. at Id Neb. 449, 275 N.W. 674 (1937) Id. at 451, 275 N.W. at Id. at 452, 275 N.W. at Id. at 451, 275 N.W. at Id. at 453, 458, 275 N.W. at 677, Id. at 458, 275 N.W. at Owens v. Children's Memorial Hosp., 347 F. Supp. 663, 665 (1972).

25 1987] BYSTANDER RECOVERY IN TORT NEBRASKA'S RECOGNITION OF A BYSTANDER CLAIM OF EMOTIONAL DISTRESS The first court to face "precisely" the bystander recovery issue pursuant to Nebraska law was the United States District Court for the District of Nebraska in Owens v. Children's Memorial Hospital. 224 In Owens, the plaintiffs were the parents of Lonnie Owens, Jr. 225 The parents claimed to have suffered severe emotional distress as a result of witnessing the steady decline of their son's health while he was a patient at Children's Memorial Hospital The parents further alleged that the defendant hospital had "negligently failed to properly diagnose, treat, and care for their son by failure to employ ordinary skill and diligence and by failure to apply available methods of diagnosis ordinarily used by hospitals and physicians of ordinary skill and learning. ' 227 The plaintiffs attempted to assert a bystander recovery theory, in part, because the Nebraska Wrongful Death Act did not provide for damages attributable to "the elements of pain, anguish, loss of companionship, and other mental sufferings of the deceased's beneficiaries." 228 The defendant hospital moved to dismiss the plaintiff's case because Nebraska had yet to recognize a cause of action for bystander claims of emotional distress As an initial matter, the Owens court recognized that Nebraska law still required the alleged emotional harms to be accompanied by a "physical injury. '230 The words "physical injury" were not a throwback to the former impact rule but indicated only that the psychological trauma must manifest itself in an objectively observable way. 231 Assuming that the plaintiffs could prove such "physical injury," the court then faced the primary question of whether "the highest court of Nebraska [would] extend recovery to them, in the absence of impact or some other objective determinable situation for incurring injuries from witnessing the suffering of their child, rather from their own peril or fear for themselves?" F. Supp. 663, 665 (1972) Id. at Id Id Id. at 665. Under the Nebraska Wrongful Death Act, pain, anguish, loss of society and companionship are not proper elements of damage. Elliott v. City of Univ. Place, 102 Neb. 273, 276, 166 N.W. 621, 622 (1918). See NEB. REv. STAT to -810 (1943) Owens, 347 F. Supp. at Id. at Id. at 667. In the present case, the plaintiffs alleged "severe excruciating physical pain and mental anguish" as well as shock to the nervous system. Id. at Id. at 667.

26 CREIGHTON LAW REVIEW [Vol. 20 In its attempt to predict what the Nebraska Supreme Court would do under similar circumstances, the Owens court reviewed the previous Nebraska cases based on negligent infliction of emotional distress: Hanford, Netusil, and Rasmussen. 233 Analyzing the true meaning of the Rasmussen decision, the Owens court stated: "This Court believes that a narrow reading of Rasmussen is in order. The case obviously stands for the official interment of the impact doctrine in Nebraska. However, as pointed out previously, it need not follow that the doctrine is, thereby abrogated as to witnessing third parties." 234 After noting that "the above rules generally apply only when the plaintiff has been the direct object of the defendant's negligent acts," the court proceeded to examine case law from other jurisdictions. 235 Although Dillon had been decided four years before the Owens case, the landmark California decision had yet to generate a wide following. 236 Indeed, at the time the district court decided Owens, the great weight of authority remained firmly in support of the zone of danger rule. 237 The Owens court recognized such decisions as Tobin v. Grossman 238 and Waube v. Warrington 2 39 as representative of the theory that bystander witnesses could not state a claim for relief based upon fear for the safety of another unless they too were in some sort of physical peril. 240 Finding this authority to be more moderate than Dillon and its progeny, and expressing its reluctance to break new ground on behalf of the Nebraska Supreme Court, the Owens court stated: [E]ven if the court elected to make some departure from the traditional doctrine of nonrecovery in such cases by refusing to require "impact" even as to witnessing third parties' right to recover as it has previously done for the party actually imperiled, this Court is hesitant to speculate that the Nebraska Court would not limit such recovery in some other manner. 241 Based on this rationale, and bolstered by judicial language gleaned from Nebraska's consistent refusal to award parents emotional damages under the state Wrongful Death Act, the Owens court dismissed 233. Id. at Id. at Id. at See Note, supra note 68, at 856 (reviewing jurisdictions that had examined the Dillon test and had decided against its adoption) Owens, 347 F. Supp. at N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969) Wis. 603, 258 N.W. 497 (1935) Owens, 347 F. Supp. at Id. at 668.

27 1987] BYSTANDER RECOVERY IN TORT the plaintiff's cause of action because the Owenses were never in any physical danger, nor had they ever feared for their own safety. 242 The federal district court's prediction that Nebraska would adopt the zone of danger test for bystander claims of emotional distress proved to be correct. 243 The Nebraska Supreme Court reaffirmed the "zone of danger" rule nine years later in Fournell v. Usher Pest Control Co In Fournell, the plaintiffs were a young married couple who had undertaken a great financial burden in the purchase of a new home Prior to the purchase, the plaintiffs had contracted with the defendant pest control company for a termite inspection. 246 Relying on what they believed to be a clean bill of health for their home, Susan and David Fournell purchased the house. 247 Within three months, Susan discovered extensive termite infestation in the home. 248 She became distraught and sought medical help for her depression, first from a physician and later from a psychiatrist. 249 She was hospitalized on three separate occasions and eventually attempted suicide. 250 The evidence suggested that her emotional distress stemmed from her discovery of the termite infestation The district court applied the zone of danger test to Susan Fournell's claim because she was a direct victim of negligently inflicted emotional distress In stating Nebraska's test, the trial court held that "two elements essential to a recovery under Nebraska law for the negligent infliction of emotional trauma were not present: (1) That physical injury resulted from the emotional trauma; and (2) That defendant's negligence placed the injured party, Susan Fournell, in fear of peril for her own safety. '253 The Nebraska Supreme Court held that the question of fact regarding the plaintiff's physical injury need not be resolved, because the plaintiff's claim failed the second part of the threshold test as a 242. Id. at 669. The Owens court viewed the Owens' attempt to recover for emotional injuries following the death of their son as "attempting to do indirectly what the law forbids them to do directly." Id. at 665. The denial of recovery under the Nebraska Wrongful Death Act for such damages factored heavily in the court's dismissal of the Owens' claim. Id. at 665, Fournell v. Usher Pest Control Co., 208 Neb. 684, 687, 305 N.W.2d 605, 607 (1981) Neb. 684, 688, 305 N.W.2d 605, 607 (1981) Id. at at , 305 N.W.2d at 612 (Krivosha, C.J., dissenting) Id. at 685, 305 N.W.2d at Id. at 685, 305 N.W.2d at Id. at 685, 305 N.W.2d at Id Id. at 699, 305 N.W.2d at 612 (Krivosha, C.J., dissenting) Id. at 686, 305 N.W.2d at See James v. Lieb, 221 Neb. 47, 49, 375 N.W.2d 109, 111 (1985) Fournell, 208 Neb. at 686, 305 N.W.2d at 606.

28 CREIGHTON LAW REVIEW [Vol. 20 matter of law The court cited the Owens decision as correctly predicting that Nebraska would require plaintiffs seeking recovery for negligently inflicted emotional distress "to have been within the 4zone of danger or actually put in fear for [their] own safety.' "255 Because Susan Fournell did not allege facts sufficient to meet the zone of danger test, the Nebraska Supreme Court affirmed the summary judgment against her The Fournell decision represented the Nebraska Supreme Court's sole application of the zone of danger test. 257 The case pertaining to the narrow issue of bystander recovery for emotional distress, James v. Lieb, 258 was applied by the court to abrogate the zone of danger test and to adopt the more expansive foreseeability guidelines In light of James, this Note examines the subtle variations between the standard Dillon guidelines and those foreseeability guidelines prescribed by the James majority for application in Nebraska. ANALYSIS In James, the Nebraska Supreme Court formally abrogated the zone of danger rule in favor of a foreseeability approach to bystander claims of negligently inflicted emotional distress. 260 The James court, therefore, adopted the spirit of the landmark California decision in Dillon v. Legg The James holding is not, however, a duplicate of Dillon In formulating its foreseeabiity test, the Nebraska Supreme Court had the benefit of nearly two decades of case law following Dillon, and countless critical analyses examining the operation of the Dillon test and the policies that support the test Study of these commentaries allowed the James court to create a foreseeability test that avoids some of the pitfalls found in a Dillon-type analysis. Thus, the James holding is both an expansion of tort liability in Nebraska and a response to the shortcomings in the Dillon pro Id. at 688, 305 N.W.2d at Id. at 687, 305 N.W.2d at James, 221 Neb. at 49, 375 N.W.2d at Id. at 48-49, 375 N.W.2d at 111. See Note, Fournell v. Usher Pest Control Co.: Emotional Disturbance, 15 CREIGHTON L. REv. 391, 396 (1981) (supporting the Fournell decision and its requirement of a physical manifestation of the emotional injury) Neb. 47, 54, 375 N.W.2d 109, 114 (1985) Id. at 55, 375 N.W.2d at Id. at 54, 375 N.W.2d at Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) James, 221 Neb. at 55, 375 N.W.2d at 115. The James court did not adopt the Dillon holding verbatim, but chose instead to adopt the foreseeability approach with "comments and modifications." Id See supra note 6 and accompanying text.

29 1987] BYSTANDER RECOVERY IN TORT cedure for evaluating claims of emotional distress made by witnesses to an accident. The James holding differs from the classic Dillon test in at least four substantial ways, and the James opinion also reflects the majority's concerns of both practicality and policy. 2 4 Two of the alterations attempt to more finely tailor the test so that only plaintiffs and injuries that are truly foreseeable are compensated, while the second two modifications reflect an awareness of the dangers in runaway tort liability. 265 The first section of this analysis outlines the critical differences between the two tests. 266 Moreover, the second section surveys recent cases from other jurisdictions and how their outcomes might have differed using the James rather than the Dillon guidelines of foreseeability This section is particularly helpful to Nebraska practitioners as they attempt to determine the new perimeters of recovery allowable by the James holding. COMPARISON OF THE RULES ENUNCIATED IN JAMES AND DILLoN By establishing a priority among the three Dillon factors, the Nebraska Supreme Court's holding in James subtly modified the Dillon analysis In James, the Nebraska Supreme Court clearly stated that "the relationship between the plaintiff and victim is the most valuable in determining foreseeability, and therefore the most crucial. ' 269 The James court further delineated the Nebraska test by stating: "To satisfy this factor we chose not to require a relationship within a certain degree of consanguinity as the Iowa Supreme Court did... Rather, we will require that there be a marital or intimate familial relationship between the plaintiff and the victim. '270 The California Supreme Court did not specify which one, if any, of the Dillon guidelines is to be considered most significant. The Dillon court intimated only that it would consider "[w]hether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." '271 Thus, using the traditional Dillon guidelines, it is less clear to personal injury practitioners which factors a court may use to determine whether the victim and the plaintiff had the required close relationship. In Nebraska, however, personal injury practitioners must prove See James, 221 Neb. at 55-59, 375 N.W.2d at Id See infra notes and accompanying text See infra notes and accompanying text James, 221 Neb. at 55, 375 N.W.2d at Id Id Dillon, 68 Cal. 2d at , 441 P.2d at 920, 69 Cal. Rptr. at 80.

30 CREIGHTON LAW REVIEW [Vol. 20 a "marital or intimate familial" relationship or face a "heavier burden of proving a significant attachment." 272 Since Dillon, many claims of emotional distress by a witnessing bystander have been decided precisely upon this issue. 273 A second significant alteration of the Dillon test was the combination of the factors requiring a "physical proximity" and a "contemporaneous observance" of the accident. 274 The James court agreed with a recent Montana decision which held that if a "'plaintiff is required to experience actual sensory perception of the accident, the requirement of proximity is necessarily satisfied.' "275 To be sure, an examination of the Dillon progeny reveals many anomalous decisions that have denied recovery based strictly on the absence of one or the other of these related elements. 276 By acknowledging the similarity of these elements, the Nebraska Supreme Court reasoned that it will not deny recovery to the plaintiff who is near the accident but fails to recognize the accident's occurrence contemporaneously, or to the plaintiff who senses an accident happening to a loved one but is not physically near at the time. The James majority conceded that "this guideline is in effect a policy consideration concerning the extent of the defendant's liability," thus deflating the myth that modern courts are grappling for a magic formula that will determine Palsgrafian foreseeability for any given situation. 277 The Nebraska Supreme court reinforced this concept when it stated that although California courts may "mechanically apply the Dillon guidelines in bystander recovery cases," the better interpretation is that "[t]hese factors were not intended to be fixed guidelines which an aggrieved plaintiff-bystander was required to satisfy in order to recover; rather, the factors were to be taken into account by courts in assessing the degree of foreseeability of emotional injury to the plaintiff The third James court modification of the Dillon guidelines is also grounded in a judicial desire to maintain some limits on a negli James, 221 Neb. at 56-57, 375 N.W.2d at See inrfra notes and accompanying text James, 221 Neb. at 56-57, 375 N.W.2d at Id. (citing Versland v. Caron Transp., 671 P.2d 583, 586 (Mont. 1983)) See, e.g., Kately v. Wilkinson, 148 Cal. App. 3d 576, -, 195 Cal. Rptr. 902, 907 (1983) (reasoning that a plaintiff who had witnessed the tragic death of a dear friend had not satisfied the closeness of relationship requirement); Justus v. Atchison, 19 Cal. 3d 564, -, 565 P.2d 122, , 139 Cal. Rptr. 97, (1977) (denying recovery for a plaintiff where emotional shock was not contemporaneous with the death of his unborn child); Jansen v. Children's Hosp. Medical Center, 31 Cal. App. 3d 22, -, 106 Cal. Rptr. 883, 884 (1973) (holding that a negligent misdiagnosis was not an event that could be sensorily perceived) James, 221 Neb. at 57, 375 N.W.2d at Id. at 54-55, 375 N.W.2d at 114 (quoting Paugh v. Hanks, 6 Ohio St. 3d 72, 76, 451 N.E.2d 759, 764 (1983)).

31 19871 BYSTANDER RECOVERY IN TORT gent defendant's liability toward bystander witnesses. While the tests share the requirement that the plaintiff's claim rest on the prior adjudicated liability of the defendant for the victim's injuries, the James court would require in addition that "the foreseeable harm to be redressed, must result from either death or serious injury to the victim. '279 Therefore, even though it is conceivable that a bystander might suffer a severe emotional trauma from a near miss, or perhaps a minor injury to a loved one, the court held generally that "these emotions pale in comparison to the profound grief, fright, and shock experienced following an accidental death 2 8 or s 0 serious injury. This requirement appears to be related to a later comment in the James opinion which indicates that a plaintiff must prove "that a reasonable person in the position of the bystander plaintiff has suffered a compensable injury. ' "281 These comments, taken together, indicate that the plaintiff must be objectively injured by the event and that a plaintiff predisposed toward emotional breakdown may not obtain recovery under Nebraska law. The final adaptation of the Dillon doctrine by the James majority was its express denial of the necessity of a physical manifestation of emotional trauma Although some courts applying the Dillon guidelines have denied recovery to plaintiffs who claim no outward effects of their mental distress, Nebraska courts will rely on the "current state of medical science and advances in psychology" to ferret out fraudulent claims In support of its abolishment of the physical manifestation requirement, the James court noted that maintaining that element would lead to a trio of evils: (1) overinclusivity, (2) underinclusivity, and (3) extravagance in pleadings and testimony The four modifications, or perhaps clarifications, of the Dillon doctrine enunciated in James do not remove James from the ranks of the Dillon progeny Each rule reflects its jurisdiction's desire to fully compensate tortious injuries that are foreseeable; nonetheless, the subtle differences in approach could make a difference to the prospective bystander/plaintiff A rigid application of the Dillon 279. Id. at 57, 375 N.W.2d at Id Id. at 58, 375 N.W.2d at 116 (emphasis added) Id Id Id. See also Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, -, 616 P.2d 813, 821, 167 Cal. Rptr. 831, 839 (1980) (abrogating the physical manifestation requirement in California cases of negligently inflicted emotional distress) Tom on Torts, in 28 Atla L. Rep. 443 (ATLA) (Dec. 1985) See Dillon, 68 Cal. 2d 728, -, 441 P.2d 912, 919, 69 Cal. Rptr. 72, 79 (1968). The court stated that "we cannot let the difficulties of adjudication frustrate the principle

32 CREIGHTON LAW REVIEW [Vol. 20 factors, transforming them into Dillon criteria, can lead to a restricted concept of foreseeability, and thus restricted recovery. A more liberal analysis, using the factors as loose guidelines, can sometimes lead to very remote plaintiffs recovering from a defendant who has no distinguishable legal duty of care. The James holding is an attempt by the Nebraska Supreme Court to give the doctrine both the flexibility of a case-by-case analysis and the stability of an established rule of law. 287 RECENT CASE LAW: WOULD JAMES LEAD TO A BETTER RESULT? The old saying that "truth is stranger than fiction" has been borne out countless times. In the nearly two decades since the seminal Dillon decision, first abrogated the zone of danger rule in favor of a foreseeability test, the doctrine has been assaulted by claims attempting to stretch every conceivable aspect of the test One meaningful way to test the James decision against the Dillon doctrine is to examine these remote claims retrospectively and determine whether the James analysis would lead to results that are more desirable in both fairness and consistency. Furthermore, this retrospective analysis may provide personal injury practitioners in Nebraska with insight into the important elements of the James test and the mechanics of its application. Closeness of Relationship In James, the Nebraska Supreme Court decided that an analysis of the bystander's relationship to the victim was "most crucial." 289 A "marital or intimate familial relationship" will be required, with more distant relatives facing a "heavier burden of proving significant attachment. '290 In James, the plaintiff, Gregory James, was the victim's older brother, a relationship that in this case was close enough to merit recovery Thus, at this writing, it is unclear as to what proof Nebraska courts will require to establish a compensable remote that there be a remedy for every substantial wrong." Id. The court followed this comment with an explanation of the traditional limitation on potential recovery, that is, the concept of reasonable foreseeability. Id. at -, 441 P.2d at , 69 Cal. Rptr. at James, 221 Neb. at 55, 60, 375 N.W.2d at 114, 117. The Nebraska Supreme Court adopted the James rule in light of a prior decision in which it was held that "[n]egligence must be measured against the particular set of facts and circumstances present in each case." McGinn v. City of Omaha, 217 Neb. 579, 585, 352 N.W.2d 545, 549 (1984) See infra notes and accompanying text James, 221 Neb. at 55, 375 N.W.2d at Id. at 48, 55, 375 N.W.2d at 111, Id. at 55-56, 375 N.W.2d at 115.

33 1987] BYSTANDER RECOVERY IN TORT relationship. 292 In the future, Nebraska courts are likely to confront claims of emotional distress by collateral relatives, step-relatives, fiancees and others with no legal relationship to the victim. 293 The Iowa Supreme Court anticipated such claims from remote relatives in Barnhill v. Davis The Iowa court chose to set an arbitrary boundary to recovery beyond which a remote relative cannot be compensated In Iowa, a bystander and the victim must be "husband and wife or related within the second degree of consanguinity or affinity. '296 To support this limit on liability, the Barnhill court quoted Professor Prosser's famous passage: "It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every... bystander shocked at an accident, and every distant relative of the person injured, as well as his friends. '297 Iowa's requirement, while an effective limitation on remote recovery, violates the spirit of the case-by-case analysis and foreseeability tests set forth in Dillon. 298 Certainly, there are bystander plaintiffs not within the second degree of consanguinity who suffer grievous emotional injuries in witnessing serious harm befall a loved one. 299 The concept of compensation for those plaintiffs whose injuries are both serious and foreseeable is at the heart of the Dillon doctrine De Facto Spouses One bystander/plaintiff category that merits consideration in the Dillon test is the unmarried cohabitant or the "de facto spouse." '30 ' In Drew v. Drake, a California appellate court sustained a demur See id. at 54, 375 N.W.2d at See Tobin v. Grossman, 24 N.Y.2d 609, 615, 249 N.E.2d 419, 422, 301 N.Y.S.2d 554, 558 (1969) (discussing the probability that once a foreseeability rule is established, it will be subject to claims by more distant relatives and even unrelated plaintiff/ bystanders) N.W.2d 104, 108 (Iowa 1981) Id Id Id. at Dillon, 68 Cal. 2d at -, 441 -P.2d at 918, 69 Cal. Rptr. at 78 (admonishing against substitution of the case-by-case analysis with "artificial and indefensible" barriers to recovery) See Ramirez v. Armstrong, 100 N.M. 538, -, 673 P.2d 822, 824 (1983) (denying recovery to a young girl who witnessed the negligently caused death of Santana Ramirez, the head of the household in which she had been staying) Garcia v. Superior Court, 169 Cal. App. 3d 397, -, 215 Cal. Rptr. 189, 193 (1985) See Dillon, 68 Cal. 2d at -, 441 P.2d at 926, 69 Cal. Rptr. at 88 (Burke, J., dissenting) (predicting subsequent difficulties in determining "how close" the relationship between the bystander and victim must be in order to justify recovery) Cal. App. 3d 555, 168 Cal. Rptr. 65 (1980).

34 CREIGHTON LAW REVIEW [Vol. 20 rer against a bystander plaintiff who had lived with the deceased victim for three years prior to the accident The plaintiff's argument was based in part upon a recent California decision, Mobaldi v. Regents of University of California, 30 4 in which the court stated that "the emotional attachments of family relationship and not the legal status are those which are relevant to foreseeability." 305 The majority chose, however, to distinguish Mobaldi on its facts, stating that in Drew "there was no family relationship and there was no allegation that respondents knew or should have foreseen any other kind of relationship between appellant and the victim of the accident." The court stated that "no reported decision extends the 'close relationship' guideline to include friends or housemates" and showed itself unwilling to make that extension The lower court demurrer was narrowly affirmed despite a spirited dissent The dissenting opinion attempted to show the incongruity of the Drew decision: We are told that unchurched male/female relationships cannot be close and that the tortfeasor could not foresee that his victim would have a close relationship with a person to whom she was not formally married. Giving full credit to the rarified air at the appellate level the conclusion reached here today is nevertheless astonishing: my majority colleagues have determined the incidence of cohabitation without benefit of clergy in contemporary California society as to be so rare that it can be characterized as "unexpected and remote. '30 9 The dissent further argued against the arbitrary spring of foreseeability at the altar as being contrary to the principles of the Dillon doctrine, stating: "I do not believe that this no marriage-no recovery rule is what the California Supreme Court meant when it ordered the courts of this state to carefully analyze on a case-by-case basis what the ordinary person should have foreseen The Drew decision, like Barnhill, stood for an unwarranted limitation on the Dillon doctrine and was not faithful to the principles it purported to follow. The Dillon foreseeability guidelines were adopted by the California 303. Id. at 555, 558, 168 Cal. Rptr. at 65, Cal. App. 3d 573, 127 Cal. Rptr. 720 (1976). In Mobaldi, a foster mother witnessed the negligent administration of an incorrect dosage of medicine to a child whom she was holding. Id. at 578, 127 Cal. Rptr. at Drew, 110 Cal. App.3d at 558, 168 Cal. Rptr. at 66 (quoting Mobaldi v. Regents of Univ. of Cal., 55 Cal. App.3d 573, 582, 127 Cal. Rptr. 720, 726 (1976)) Id. at 558, 168 Cal. Rptr. at Id. at 557, 168 Cal. Rptr. at Id. at 558, 168 Cal. Rptr. at Id. at , 168 Cal. Rptr. at 66 (Poch6, J., dissenting) Id. at 559, 168 Cal. Rptr. at (Poch6, J., dissenting).

35 19871' BYSTANDER RECOVERY IN TORT Supreme Court to aid in the case-by-case analysis of bystander claims of negligently inflicted emotional distress. 31 ' The Barnhill and Drew decisions violated the Dillon spirit by "substituting for the case-bycase resolution of causes an artifical and indefensible barrier. ' '312 Within five years the position of the Drew dissent was vindicated by a California appellate court In Garcia v. Superior Court, 314 the court stated that a cohabitant "can state a cause of action for the negligent infliction of emotional distress if the plaintiff can demonstrate that the relationship is both stable and significant The Garcia court was persuaded not only by the Drew dissent, but also by the simple truth that unmarried cohabitation had become a foreseeable norm in modern society Once that premise had been accepted, the court's statement of the proper issue of law followed readily: "Is it foreseeable in contemporary society that an injury to an adult may result in emotional trauma to another adult with whom the injured party is cohabitating without benefit of marriage?" 317 Because Dillon was silent as to what kind of relationship would be sufficient to justify recovery, California courts took varying views. 318 In Drew, the majority felt that Dillon referred to a legal relationship between the plaintiff and the victim In Garcia, the court determined that the relationship must be "stable and significant" rather than legally documented. 320 The Garcia court's emphasis was on the emotional ties between people rather than on their technical legal status. 321 This discrepancy in interpretation of the Dillon doctrine is further exemplified by the dilemma over claims by children for the emotional distress occasioned by the negligent injury or death of their step-parents or guardians. Step-parents, Guardians and Friends If an assumption can be made that the closest emotional relationships are formed among persons who share a home life, the restructuring of the American home will present many severe tests of the 311. Dillon, 68 Cal. 2d at -, 441 P.2d at 921, 69 Cal. Rptr. at Id. at -, 441 P.2d at 918, 69 Cal. Rptr. at Garcia v. Superior Court, 169 Cal. App. 3d 397, -, 215 Cal. Rptr. 189, 193 (1985) Cal. App. 3d 397, 215 Cal. Rptr. 189 (1985) Id. at -, 215 Cal. Rptr. at Id. at -, 215 Cal. Rptr. at Id. at -, 215 Cal. Rptr. at See supra notes and accompanying text Drew, 110 Cal. App. 3d at , 168 Cal. Rptr. at Garcia, 169 Cal. App. 3d at -, 215 Cal. Rptr. at Id. at -, 215 Cal. Rptr. at