1998 -NMSC- 39, Fernandez v. Walgreen Hastings Co.

• Decision Date: 22 October 1998
• Docket Number: No. 24,915,24,915
• Citation: 1998 NMSC 39,968 P.2d 774,126 N.M. 263
• Parties: , 1998 -NMSC- 39 Eufelia Manuelita FERNANDEZ, Plaintiff-Appellant, v. WALGREEN HASTINGS CO., S. Lueck, and S. Smithberger, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 774

968 P.2d 774

126 N.M. 263, 1998 -NMSC- 39

Eufelia Manuelita FERNANDEZ, Plaintiff-Appellant, v. WALGREEN HASTINGS CO., S. Lueck, and S. Smithberger Defendants-Appellees.

No. 24,915.

Supreme Court of New Mexico.

Oct. 22, 1998.

Silva, Rieder & Maestas, P.C., Benjamin Silva, Jr., F. Barry McCabe, Albuquerque, for Appellant.

Miller, Stratvert & Torgerson, P.A., Gary L. Gordon, Ruth M. Fuess, Alice Tomlinson-Lorenz, Albuquerque, for Appellees.

OPINION

McKINNON, Justice.

¶1 Eufelia Manuelita Fernandez (Plaintiff) sued Walgreen Hastings Co., Steve Lueck, and Sylvia Smithberger (Defendants) for negligent infliction of emotional distress (NIED) and loss of consortium. She claims NIED damages for her emotional distress from observing her twenty-two-month-old granddaughter, Margarita Danielle Valdez, suffocate and die after Defendants negligently misfilled Margarita's prescription. She also claims loss of consortium damages because she asserts that she was her granddaughter's guardian, caretaker, and provider of parental affection. The trial court dismissed both claims on summary judgment. Plaintiff appealed to the Court of Appeals, which certified the case to our Court. Applying a de novo standard of review to these questions of law, see Wilson v. Denver, 1998-NMSC-016, p 13, 125 N.M. 308, 961 P.2d 153, we affirm in part and reverse in part.

¶2 We affirm the dismissal of Plaintiff's NIED claim and hold that NIED does not compensate for the observation of a family member's suffering where the plaintiff was neither a bystander to a sudden, traumatic injury-producing event nor aware of the cause of the victim's injuries. We reverse the dismissal of Plaintiff's loss of consortium claim and hold that she has raised issues of fact material to the determination that she was the caretaker and provider of parental affection for her granddaughter.

I. COURSE OF PROCEEDING AND FACTS.

¶3 After Defendants moved to dismiss for failure to state a claim, Plaintiff filed an affidavit with her response, converting the motion to dismiss into a motion for summary judgment, which was granted. See Rule 1-012(B) NMRA 1998. In portraying the factual record here for our review, we make "all inferences in favor of the non-movant, interpreting all material facts in favor of requiring a trial on the merits." Rummel v. St. Paul Surplus Lines Ins. Co., 1997-NMSC-042, p 9, 123 N.M. 767, 945 P.2d 985.

¶4 Margarita and her mother had been living with Plaintiff for approximately six months. Plaintiff cared for and nurtured Margarita during the workday. On the night of January 3, 1994, Margarita was diagnosed with viral croup and prescribed Pediapred (a steroid) to keep her airway from being blocked by inflammation. Later that night, Walgreen's pharmacy misfilled the prescription, dispensing Pediaprofen (children's Motrin, a non-steroid) instead of Pediapred. Margarita's mother administered a dose of Pediaprofen, unaware that it was not the prescribed medicine.

¶5 The next morning, Margarita's condition worsened, but administration of another dose of Pediaprofen did not help. Neither Plaintiff nor Margarita's mother was aware that the prescription had been misfilled or that the misfill was failing to inhibit the blockage of her airway. With Plaintiff holding Margarita in her arms, Margarita's mother drove to the hospital. While en route, Margarita began to suffocate due to the blockage, and stopped breathing. Attempts to resuscitate her failed. When they arrived at the hospital, her pulse was very weak and she became comatose. Two days later, she was removed from life support and died soon thereafter.

II. DISCUSSION.

A. NIED: BYSTANDER RECOVERY.

¶6 NIED is an extremely narrow tort that compensates a bystander who has suffered severe emotional shock as a result of witnessing a sudden, traumatic event that causes serious injury or death to a family member. See, e.g., Acosta v. Castle Constr., Inc., 117 N.M. 28, 29, 868 P.2d 673, 674 (Ct.App.1994) (electrocution); Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990) (automobile collision); Ramirez v. Armstrong, 100 N.M. 538, 539-40, 673 P.2d 822, 823-24 (1983) (same), overruled in part, Folz, 110 N.M. at 460, 797 P.2d at 249; Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 914 (Cal.1968) (same); Annotation, Immediacy of Observation of Injury as Affecting Right to Recover Damages for Shock or Mental Anguish from Witnessing Injury to Another, 5 A.L.R.4th 833, 836-51 (1981) (listing numerous cases allowing recovery where bystander witnessed an automobile collision or similar sudden, traumatic event). However, as we observed in Gabaldon v. Jay-Bi Property Management, Inc.,

[c]ourts and commentators universally agree that the tort of bystander NIED is not available to compensate the grief and despair to loved ones that invariably attend nearly every accidental death or serious injury....

....

... 'The shock of seeing efforts to save the life of an injured spouse in an ambulance or hospital ... will not be compensated because it is a life experience that all may expect to endure. The compensable serious emotional distress of a bystander under the tort of negligent infliction of emotional distress is not measured by the acute emotional distress of the loss of the family member.'

122 N.M. 393, 396-97, 925 P.2d 510, 513-14 (1996) (citations omitted) (quoting Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 517 N.W.2d 432, 444-45 (1994)) (emphasis added). "It would certainly cause any parent great anguish to witness one's child in pain and to be unable to alleviate it. However, the parents of every child injured through the negligence of another are not entitled to recovery for their emotional distress--no matter how foreseeable we may agree that such anguish would be." Marchetti v. Parsons, 638 A.2d 1047, 1051 (R.I.1994)

¶7 New Mexico recognizes a claim for NIED where "(1) the plaintiff and the victim enjoyed a marital or intimate family relationship, (2) the plaintiff suffered severe shock from the contemporaneous sensory perception of the accident, and (3) the accident caused physical injury or death to the victim." ¹ Folz, 110 N.M. at 471, 797 P.2d at 260.

1. Contemporaneous Sensory Perception or the Accident.

¶8 The first and third elements are not at issue, and the trial court assumed Plaintiff had suffered severe shock. Therefore, the only question is whether Plaintiff's observation of the dying victim was a contemporaneous sensory perception of the accident. New Mexico courts have previously explored the meaning of "sensory perception" and "contemporaneous." See Acosta, 117 N.M. at 29-30, 868 P.2d at 674-75 ("sensory perception" includes hearing, without seeing, a family member being electrocuted); Gabaldon, 122 N.M. at 397, 925 P.2d at 514 (arrival at the scene of the accident soon after it occurs but before the arrival of emergency medical personnel is "contemporaneous" with the accident). This case requires us to analyze and explain the meaning of "accident" for purposes of NIED.

a. The defendant's Negligent Conduct.

¶9 The trial court equated "accident" with negligent conduct. We do not agree that this is or ever has been the correct analysis of NIED in New Mexico. Under this interpretation, a bystander could recover only if he or she knew the defendant's conduct was tortious at the time of the injury-producing event. Placing this restriction on recovery "would lead to the anomalous result that a mother who viewed her child being struck by a car could not recover because she did not realize that the driver was intoxicated." Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, 8 (Cal.1985) (citing Mobaldi v. Regents of Univ. of Cal., 55 Cal.App.3d 573, 127 Cal.Rptr. 720 (Ct.App.1976)). Recognizing that this analysis would significantly and unreasonably deprive a remedy for one who witnessed a sudden, traumatic, injury-producing event and suffered severe emotional shock, New Mexico courts have rejected it. For example, in Ramirez, 100 N.M. at 539-40, 673 P.2d at 823-24, the children who witnessed the collision recovered even though they did not know the tortious nature of the defendant's conduct. In Folz, 110 N.M. at 460-61, 797 P.2d at 249-50, the plaintiff recovered despite her lack of knowledge at the time of the collision that the Highway Department had negligently "fail[ed] to design and implement an appropriate traffic-control plan for [a construction] project" on a steep mountain highway. And in Acosta, 117 N.M. at 29-30, 868 P.2d at 674-75, the plaintiff did not know at the time of his brother's electrocution which of the defendant's acts or omissions negligently caused it. This lack of knowledge did not bar recovery. Therefore, a plaintiff need not observe or know of the defendant's negligent conduct in order to recover for NIED. ²

b. The Injury to the Victim.

¶10 Plaintiff argues that "accident" refers to the victim's injury, and because she witnessed the suffocation and death of her granddaughter, she is entitled to recover. We also cannot agree with this analysis. Under this construction, a plaintiff could recover although he or she was not a bystander at the scene of the injury-producing event. If observation of the injury or death were sufficient to show contemporaneous sensory perception, recovery for NIED could occur in virtually all medical malpractice cases. We have never construed NIED this broadly. Furthermore, given the historical basis for this tort, we do not believe NIED was ever intended to apply in such cases. Cf. Golstein v. Superior Court, 223 Cal.App.3d 1415, 273 Cal.Rptr. 270, 278 n. 3 (Ct.App.1990) (noting that allowing bystander recovery for "a medical malpractice plaintiff who observes only the suffering of the victim and not the actual event that causes that suffering" conflicts with Dillon, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912). ³

¶11 In Gabaldon, the plaintiff arrived at the scene of her...