207 N.W.2d 140 (Mich.App. 1973), 13359, Toms v. McConnell

Docket NºDocket No. 13359.
Citation207 N.W.2d 140, 45 Mich.App. 647
Opinion JudgeBefore DANHOFand BRONSON and T M BURNS, JJ
Party NamePaula K. TOMS and Ardin D. Toms, Plaintiffs-Appellants, v. Max McCONNELL et al., Defendants-Appellees.
Attorney[45 Mich.App. 648] Wilfred A. Dupuis, Lansing, for plaintiffs-appellants. Fraser, Trebilcock, Davis & Foster, Denfield, Timmer & Seelye, Lansing, for defendants-appellees.
Judge PanelBefore DANHOF, P.J., and BRONSON and T. M. BURNS, JJ.
Case DateMarch 27, 1973
CourtCourt of Appeals of Michigan

Page 140

207 N.W.2d 140 (Mich.App. 1973)

45 Mich.App. 647

Paula K. TOMS and Ardin D. Toms, Plaintiffs-Appellants,

v.

Max McCONNELL et al., Defendants-Appellees.

Docket No. 13359.

Court of Appeals of Michigan, Division No. 3.

March 27, 1973

Released for Publication May 15, 1973.

Page 141

[45 Mich.App. 648] Wilfred A. Dupuis, Lansing, for plaintiffs-appellants.

Fraser, Trebilcock, Davis & Foster, Denfield, Timmer & Seelye, Lansing, for defendants-appellees.

Before DANHOF, P.J., and BRONSON and T. M. BURNS, JJ.

T. M. BURNS, Judge.

This case comes to us from a summary judgment entered in favor of the defendants on the ground that plaintiffs had failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Thus for the purpose of this appeal, all well-pled factual allegations set forth in plaintiffs' complaint will be accepted as true. Martin v. Fowler, 36 Mich.App. 725, 194 N.W.2d 524 (1971).

The facts gleaned from the plaintiffs' complaint may be briefly summarized as follows: At the close of the school day on April 22, 1968, plaintiffs' nine-year-old daughter boarded a school bus for her return trip home. A short time later the bus arrived across the street from the child's residence. As the two alternating red lights on the bus were signalling, it was stopped and discharging children, the youngster in question alighted from the vehicle, walked in front of it, and started to cross the street. At this point defendant McConnell,[45 Mich.App. 649] driving a panel truck at an 'immoderate rate of speed', overtook the parked bus and in the process struck and killed plaintiffs' daughter. The child's mother, who was watching for her children to return home from school, witnessed the entire mishap in horror, shock, and disbelief.

Page 142

As a direct result of this incident, she suffered a severe traumatic depressive reaction and withdrew from normal forms of socialization. This condition has continued from the date of the accident and in all probability will continue into the future.

Plaintiffs brought suit against the operator of the school bus (defendant Strank), her employer (defendant school district), and the driver of the panel truck (defendant McConnell). The deceased child's mother sought damages based upon the aforementioned mental anguish generated by witnessing her daughter's accidental death. The deceased child's father sought damages for the resultant loss of his wife's services, companionship, consortium, and her attendant hospital and medical expenses.

Thereafter all of the defendants moved for a summary judgment pursuant to GCR 1963, 117.2(1) on the ground that plaintiffs had failed to state a claim upon which relief could be granted. The trial court concurred and granted the defendants' motion opining that 'recovery could not be had for distress of mind caused by witnessing another's suffering'. The question of governmental immunity, although apparent from the facts of the case, was not raised by the parties. Therefore, the issue is not properly before this Court and will be neither discussed nor decided.

Under the facts of the instant case, the sole and narrow question for determination is whether without sustaining any physical impact, a parent [45 Mich.App. 650] can recover for mental anguish or distress occasioned by witnessing the negligent infliction of injuries upon an immediate family member, in this instant case a child.

The other jurisdictions which have considered the question posed by the instant case are split. For example, on facts essentially indistinguishable from those in the case at hand the Vermont Supreme Court although noting it had abolished the 'no impact, no recovery rule' in mental suffering cases (as has Michigan, Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970)) felt that redress for mental anguish must be kept within manageable limits, concluded that mental anguish under the circumstances was not reasonably foreseeable, and dismissed plaintiff's suit. Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969).

Likewise where a mother saw her six-year-old daughter crushed to death by...

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39 practice notes
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • October 6, 1982
    ...31 Conn.Sup. 164, 326 A.2d 129 (Super.Ct.1973) (mother and father saw their child killed in an automobile accident); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (mother saw her nine-year-old daughter struck and killed by a truck); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App......
  • 428 N.E.2d 596 (Ill.App. 1 Dist. 1981), 80-2253, Rickey v. Chicago Transit Authority
    • United States
    • Illinois Court of Appeals of Illinois
    • October 29, 1981
    ...D'Amicol v. Alvarez Shipping Company, Inc. (1973), 31 Conn.Sup. 164, 326 A.2d [101 Ill.App.3d 443] 129; Toms v. McConnell (1973), 45 Mich.App. 647, 207 N.W.2d 140.) Furthermore, we believe that the plaintiff's allegations regarding the consequences of his distress are sufficient to establis......
  • 408 A.2d 728 (Md. 1979), 14, Vance v. Vance
    • United States
    • Maryland Court of Appeals of Maryland
    • December 12, 1979
    ...179 N.W.2d 390 (1970) (loss of weight, inability to perform household chores, extreme nervousness and irritability); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (withdrawal from socialization and for nine months unable to function, depression); Netusil v. Novak, 120 Neb. 751,......
  • 295 N.W.2d 552 (Minn. 1980), 49855, Stadler v. Cross
    • United States
    • Minnesota Supreme Court of Minnesota
    • July 3, 1980
    ...United States, 338 A.d 524 (R.I.1975). In addition, an intermediate appellate court in Michigan has allowed recovery. Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973). Connecticut's lower courts are divided. Compare D'Amical v. Alvarez Shipping Co., 31 Conn.Supp. 164, 326 A.2d 129......
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39 cases
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • October 6, 1982
    ...31 Conn.Sup. 164, 326 A.2d 129 (Super.Ct.1973) (mother and father saw their child killed in an automobile accident); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (mother saw her nine-year-old daughter struck and killed by a truck); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App......
  • 428 N.E.2d 596 (Ill.App. 1 Dist. 1981), 80-2253, Rickey v. Chicago Transit Authority
    • United States
    • Illinois Court of Appeals of Illinois
    • October 29, 1981
    ...D'Amicol v. Alvarez Shipping Company, Inc. (1973), 31 Conn.Sup. 164, 326 A.2d [101 Ill.App.3d 443] 129; Toms v. McConnell (1973), 45 Mich.App. 647, 207 N.W.2d 140.) Furthermore, we believe that the plaintiff's allegations regarding the consequences of his distress are sufficient to establis......
  • 408 A.2d 728 (Md. 1979), 14, Vance v. Vance
    • United States
    • Maryland Court of Appeals of Maryland
    • December 12, 1979
    ...179 N.W.2d 390 (1970) (loss of weight, inability to perform household chores, extreme nervousness and irritability); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973) (withdrawal from socialization and for nine months unable to function, depression); Netusil v. Novak, 120 Neb. 751,......
  • 295 N.W.2d 552 (Minn. 1980), 49855, Stadler v. Cross
    • United States
    • Minnesota Supreme Court of Minnesota
    • July 3, 1980
    ...United States, 338 A.d 524 (R.I.1975). In addition, an intermediate appellate court in Michigan has allowed recovery. Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973). Connecticut's lower courts are divided. Compare D'Amical v. Alvarez Shipping Co., 31 Conn.Supp. 164, 326 A.2d 129......
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