Toms v. McConnell, Docket No. 13359

• Decision Date: 27 March 1973
• Docket Number: Docket No. 13359,No. 3,3
• Citation: 207 N.W.2d 140,45 Mich.App. 647
• Parties: Paula K. TOMS and Ardin D. Toms, Plaintiffs-Appellants, v. Max McCONNELL et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 140

207 N.W.2d 140

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.

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, 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. 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 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 a truck as the child was exiting a school bus, the New Hampshire Supreme Court denied the mother any damages for the mental shock and anguish incurred by witnessing the event. The Court reasoned that it could fix no limits for liability which were not wholly arbitrary. Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968). See also Hyatt v. Adams, 16 Mich. 180 (1867).

On the other hand, the California Supreme Court after diligently reviewing the arguments traditionally employed to deny bystander recovery for mental suffering found such arguments wanting and allowed a mother to recover damages for mental shock and anguish produced by seeing her infant daughter struck and killed by an automobile as the child was crossing a highway. Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316 (1968).

In the case at bar, defendants rely on Hyatt v. Adams, Supra, and Ellsworth v. Massacar, 215 Mich. 511, 518, 184 N.W. 408, 410 (1921), for the proposition that there can be no recovery for mental anguish occasioned by witnessing the negligent infliction of injuries upon another.

The plaintiff in Hyatt was denied any recovery for mental distress brought about by his wife's untimely death three days after an operation was allegedly negligently performed by the defendant physician. Similarly in Ellsworth plaintiff's claim for loss of his wife's services due to her mental shock resulting from mob action near their home was disallowed. In denying plaintiff's claim the Court concluded: 'None of the unlawful acts complained of (mob action practiced upon the plaintiff husband) were directed towards her (the wife) or committed in her presence'.

Although both Hyatt and Ellsworth precluded a third party from recouping damages for mental anguish suffered as a result of tortious injuries inflicted upon a close family member, they do not stand for the principle that there can be no recovery for mental anguish generated by witnessing the negligent infliction of tortious injuries upon an immediate family member, since in neither Hyatt nor Ellsworth were the tortious act witnessed by the party suffering the mental anguish. Therefore inasmuch as these two cases did not reach the question presented by the instant case, namely whether without suffering any physical impact a party can recover for mental anguish resulting from witnessing the negligent infliction of injuries upon an immediate family member, they are materially distinguishable from and not controlling on this issue. Consequently the question, in this State at least, is an open one.

The plaintiffs herein assert that the abolition of the 'no impact, no recovery rule' in mental suffering cases, coupled with scientific advances which permit the measurement of psychological injuries paves the way for recovery in a case where, as here, a plaintiff suffers mental distress from witnessing the negligent infliction of injuries upon an immediate family member. On the other side, defendants, echoing the arguments raised in Hyatt, Ellsworth, Guilmette and Jelley, contend that recovery should be denied to the deceased child's mother in that she was not in fear of her own safety, I.e, in a 'zone of danger', and that any rule allowing recovery under the circumstances of this case would have no just stopping point, would be wholly arbitrary and would result in a proliferation of fraudulent claims.

I. ZONE OF DANGER REQUIREMENT:

As previously recounted, defendants assert that the deceased child's mother cannot recover damages for emotional distress because she watched the entire accident unfold from the confines of the family dwelling and consequently was not in fear of her own safety. In other words she was not in any so-called 'zone of danger'. See 29 A.L.R.3d 1337, Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury. This argument proves too much.

Prior to 1970 it was well settled in this jurisdiction that there could be no recovery for mental suffering unless it was accompanied by some physical impact. Manie v. Matson Oldsmobile-Cadillac Co., 378 Mich. 650, 148 N.W.2d 779 (1967). This principle became known as the 'no impact, no recovery rule'. This concept, however, was recently overturned in Daley v. LaCroix, 384 Mich. 4, 12--13, 179 N.W.2d 390, 395 (1970). In Daley the defendant's automobile left the roadway and sheared off a utility pole which in turn struck the electrical lines leading to the plaintiff's home precipitating a great electrical explosion and causing considerable property damage in the home. Plaintiffs who were in the dwelling at the time brought an action for the ensuing fright and mental suffering engendered by the accident. The trial court granted a directed verdict for the defendants on the theory that plaintiff's mental suffering, if any, was not accompanied by any physical impact. The Supreme Court, however, abolished the time-worn no impact-no recovery rule, reversed the directed verdict granted to the defendant and held that:

'where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant's negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.'

Inasmuch as this jurisdiction has nullified the impact prerequisite for recovery of damages in mental suffering cases, any requirement that a plaintiff must be in a 'zone of danger' to recover must perforce fall since the zone-of-danger concept presupposes that a plaintiff will be close enough to the tortious activity to fear a physical impact. Thus the...