375 Mass. 555 (1978), Dziokonski v. Babineau

Citation:375 Mass. 555, 380 N.E.2d 1295
Party Name:Gail F. DZIOKONSKI, administratrix, [ 1] v. Ola BABINEAU et al.,[ 2] (and a companion case [ 3]).
Case Date:June 30, 1978
Court:Supreme Judicial Court of Massachusetts

Page 555

375 Mass. 555 (1978)

380 N.E.2d 1295

Gail F. DZIOKONSKI, administratrix, 1

v.

Ola BABINEAU et al., 2 (and a companion case 3).

Supreme Judicial Court of Massachusetts, Worcester.

June 30, 1978

Argued Dec. 8, 1977.

[380 N.E.2d 1296] T. Philip Leader, Worcester, for plaintiffs.

Eugene L. Rubin, Worcester, for Ola Babineau.

Douglas Q. Meystre, Worcester, for Walter Pelletier & another.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

Page 556

WILKINS, Justice.

These appeals require us to reexamine the question whether a person who negligently causes emotional distress which leads to physical injuries may be liable for those injuries even if the injured person neither was threatened with nor sustained any direct physical injury. At the heart of the plaintiffs' claims is the argument that this court should abandon the so called "impact" rule of Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88 (1897), which denies recovery for physical injuries arising solely from negligently caused mental distress. We agree that the rule of the Spade case should be abandoned. Our inquiry does not cease at that point, however, because we must determine what new limits of liability are appropriate and how those limits affect the plaintiffs' decedents, parents of a child alleged to have been injured by the defendants' negligence.

These appeals, transferred here on our own motion, come to us following the allowance of the defendants' motions to dismiss for failure to state claims on which relief can be granted. Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). For the purpose of considering the propriety of the allowance of these motions, we summarize the allegations of each complaint.

On October 24, 1973, Norma Dziokonski, a minor, alighted from a motor vehicle, used as a school bus, on Route 117 in Lancaster. 4 That motor vehicle was owned by

Page 557

the defendant Pelletier and operated by the defendant Kroll. A motor vehicle owned and operated by the defendant Babineau struck Norma as she was crossing the road. The complaints allege the negligence of each defendant on various grounds.

The complaint filed by the administratrix of the estate of Lorraine Dziokonski (Mrs. Dziokonski) alleges that Mrs. Dziokonski was the mother of Norma and that she "lived in the immediate vicinity of the accident, went to the scene of the accident and witnessed her daughter lying injured on the ground." Mrs. Dziokonski "suffered physical and emotional shock, distress and anguish as a result of the injury to her daughter and died while she was a passenger in the ambulance that was driving her daughter to the hospital." This complaint alleges one count for wrongful death and one count for conscious suffering against each of the three defendants.

The complaint filed by the administratrix of the estate of Anthony Dziokonski (Mr. Dziokonski) alleged the facts previously set forth and added that he was the father of Norma and the husband of Mrs. Dziokonski. Mr. Dziokonski "suffered an aggravated gastric ulcer, a coronary occlusion, physical and emotional shock, distress and anguish as a result of the injury to his daughter and the death of his wife and his death was caused thereby." This complaint similarly alleged a count for wrongful death and one [380 N.E.2d 1297] count for conscious suffering against each of the three defendants. 5

Page 558

THE SPADE CASE.

We start with an analysis of Spade v. Lynn & Boston R.R., 168 Mass. 285, 47 N.E. 88 (1897), which announced a principle of tort law that has been limited and refined by our subsequent decisions but not heretofore abandoned. Margaret Spade had been a passenger on a crowded car of the Lynn & Boston Railroad Company late one Saturday night in February, 1895. She was so frightened by the negligent conduct of an employee of the defendant in removing an unruly passenger from the car that she sustained emotional shock and consequent physical injury. The trial judge instructed the jury that, when physical injury results from fear or nervous shock, "there may be a recovery for that bodily injury, and for all the pain, mental or otherwise, which may arise out of that bodily injury." Id. at 287, 47 N.E. at 88. The jury returned a verdict for Mrs. Spade, but this court held that the judge's charge misstated the law.

We acknowledged that fright might cause physical injury and that "it is hard on principle" to say why there should not be recovery even for the mental suffering caused by a defendant's negligence. Id. at 288, 47 N.E. 88. The court concluded, however, that "in practice it is impossible satisfactorily to administer any other rule." Id. We noted that recovery for fright or distress of mind alone is barred and, that being so, there can be no recovery for physical injuries caused solely by mental disturbance. Id. at 290, 47 N.E. 88. It was said to be unreasonable to hold persons bound to anticipate and guard against fright and its consequences and thought that a contrary rule would "open a wide door for unjust claims." Id.

Subsequent Treatment of the Spade Rule in Massachusetts.

In Smith v. Postal Tel. Cable Co., 174 Mass. 576, 577-578, 55 N.E. 380 (1899), which applied the Spade rule to a case involving a claim of gross negligence, Chief Justice Holmes, speaking for the court, said that the point decided in the Spade case

Page 559

"is not put as a logical deduction from the general principles of liability in tort, but as a limitation of those principles upon purely practical grounds." Id. Later, he described the Spade rule as "an arbitrary exception, based upon a notion of what is practicable." Homans v. Boston Elevated Ry., 180 Mass. 456, 457, 62 N.E. 737 (1902).

Consistently and from its inception, the Spade rule has not been applied to deny recovery where immediate physical injuries result from negligently induced fright or emotional shock. Thus, recovery has been allowed "(w)hen the fright reasonably induces action which results in external injury." Cameron v. New England Tel. & Tel. Co., 182 Mass. 310, 312, 65 N.E. 385, 386 (1902) (defendant's negligent blasting caused the plaintiff to faint and sustain physical harm). Freedman v. Eastern Mass. St. Ry., 299 Mass. 246, 250, 12 N.E.2d 739 (1938) (plaintiff's shoulder injured when she jumped to escape impending danger). Gannon v. New York, N.H. & H.R.R., 173 Mass. 40, 52 N.E. 1075 (1899) (physical injuries sustained when plaintiff moved in fright to avoid injury). See Sullivan v. H.P. Hood & Sons, 341 Mass. 216, 219-222, 168 N.E.2d 80 (1960).

Moreover, recovery for emotionally based physical injuries, sometimes described as "parasitic claims," has been allowed in tort cases founded on traditional negligent impact. Driscoll v. Gaffey, 207 Mass. 102, 105, 107, 92 N.E. 1010 (1910). Thus, where the plaintiff sustained direct physical injuries as a result of the defendant's negligence and the plaintiff also sustained paralysis, perhaps resulting solely from nervous [380 N.E.2d 1298] shock, we did not require the plaintiff to prove that the nervous shock or paralysis was a consequence of the direct physical injuries. Homans v. Boston Elevated Ry., 180 Mass. 456, 458, 62 N.E. 737 (1902). We note that allowing recovery for emotionally based physical injuries unrelated to the physical consequences of the negligently caused impact also presents the threat of "unjust claims" (Spade v. Lynn & Boston R.R., supra 168 Mass. at 290, 47 N.E. 88), or, perhaps more exactly, the threat of exaggerated claims.

We have declined to apply the Spade rule to workmen's compensation claims. See Fitzgibbons's Case, --- Mass. ---, --- - --- a 373 N.E.2D 1174

Page 560

(1978), and cases cited. "The special reasons assigned in the Spade case for denying recovery have no application to workmen's compensation cases." Charon's Case, 321 Mass. 694, 697, 75 N.E.2d 511, 513 (1947).

We have never applied the Spade rule to bar recovery for intentionally caused emotional distress. The Spade opinion itself recognized that the result might be different if the defendant's conduct had been intentional and not negligent. Spade v. Lynn & Boston R.R., supra 168 Mass. at 290, 47 N.E. 88. White v. Sander, 168 Mass. 296, 297, 47 N.E. 90 (1897). We left that question open in Smith v. Postal Tel. Cable Co., 174 Mass. 576, 578, 55 N.E. 380 (1899), and it so remained until 1971, when we decided George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971).

The George case involved allegations that, in their debt collection practices, the defendants intentionally caused emotional distress to the plaintiff and, as a result, her health deteriorated and she suffered two heart attacks. We held that "one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm." Id. at 255, 268 N.E.2d at 921. We expressly left open the question now before us, whether there could be liability for negligent conduct causing emotional distress resulting in bodily injury. 6 Id.

The question of liability for intentionally or recklessly caused severe emotional distress in the absence of bodily harm came before us in Agis v. Howard Johnson Co., --- Mass. --- b 355 N.E.2d 315 (1976). There, we held that a complaint alleging extreme, outrageous, and unprivileged conduct by the defendant stated a cause of action in favor of both the female plaintiff who sustained emotional distress but no bodily harm and her husband for loss of consortium. We rejected arguments that we should deny recovery for emotional

Page 561

distress where there is no physical injury because of the insurmountable difficulties of...

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106 practice notes
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 3 January 1986
    ...The Supreme Judicial Court has adverted to the "zone of danger" rule on a number of occasions, e.g., Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978), but in my opinion the court has never adopted that rule. The basic rule is one of the foreseeability of the emo......
  • 727 P.2d 1038 (Alaska 1986), S-79, Tommy's Elbow Room, Inc. v. Kavorkian
    • United States
    • Alaska Supreme Court of Alaska
    • 31 October 1986
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  • 572 A.2d 1062 (D.C. 1990), 84-1508, Williams v. Baker
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 9 April 1990
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  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • 6 October 1982
    ...allowed because the parent was in the "zone of danger." As stated by the Massachusetts Supreme Court in Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978): It is arguably reasonable to impose liability for the physical consequences of emotional distress where the ......
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104 cases
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 3 January 1986
    ...The Supreme Judicial Court has adverted to the "zone of danger" rule on a number of occasions, e.g., Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978), but in my opinion the court has never adopted that rule. The basic rule is one of the foreseeability of the emo......
  • 727 P.2d 1038 (Alaska 1986), S-79, Tommy's Elbow Room, Inc. v. Kavorkian
    • United States
    • Alaska Supreme Court of Alaska
    • 31 October 1986
    ...(1974); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Culbert v. Sampson's Supermarkets, 444 A.2d 433 (Me.1982); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983) (en banc); Versland v. Caron Transp., 671 P.2d 583 (Mont.1983); State......
  • 572 A.2d 1062 (D.C. 1990), 84-1508, Williams v. Baker
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 9 April 1990
    ...176 N.E.2d 729, 219 N.Y.S.2d (1961); Spade v. Lynn & B.R.R., 168 Mass. 285, 47 N.E. 88 (1897), overruled by Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978). This so-called impact rule has a three-fold rationale: that if there can be no recovery for mere fright, then there ......
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • 6 October 1982
    ...allowed because the parent was in the "zone of danger." As stated by the Massachusetts Supreme Court in Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978): It is arguably reasonable to impose liability for the physical consequences of emotional distress where the ......
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2 books & journal articles
  • Expanding the family: testing the limits of tort liability.
    • United States
    • Defense Counsel Journal Vol. 61 Nbr. 2, April 1994
    • 1 April 1994
    ...P.2d 822 (N.M. 1983); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Corso v. Merrill, 406 A.2d 300 (N.H. 1979); Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978); Leong v. Takasaki, 520 P.2d 758 (Hawaii 1974). (7.) 417 A.2d 521 (N.J. 1980). (8.) 617 A.2d 1248 (N.J. Super. 1992). An appe......
  • AN EXPANDING LEGAL DUTY: THE RECOVERY OF DAMAGES FOR MENTAL ANGUISH BY THOSE OBSERVING TORTIOUS ACTIVITY
    • United States
    • American Business Law Journal Nbr. 19-2, June 1981
    • 1 June 1981
    ...App. 363, 241 N.W.2d 208 (1976). Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204. 532 P.2d 673 (1975). Dziokonski v. Ola Babineau, 380 N.E.2d 1295 (Mass. 1978). Is Justus v. Atchison, 139 Cal. Rptr. 97, 565 P.2d 122 (1977). Archibald v. Braverman. 79 Cal. Rptr. 723, (1969); Dziokonski v......