Culbert v. Sampson's Supermarkets Inc.

• Citation: 444 A.2d 433
• Decision Date: 30 April 1982
• Docket Number: BEECH-NUT
• Parties: Judith CULBERT and Francis Patrick Culbert, by his father and next friend, Patrick Culbert, v. SAMPSON'S SUPERMARKETS INC. Judith CULBERT and Francis Patrick Culbert, by his father and next friend, Patrick Culbert, v.CORP.
• Court: Supreme Judicial Court of Maine (US)

Page 433

444 A.2d 433

Judith CULBERT and Francis Patrick Culbert, by his father and next friend, Patrick Culbert, v. SAMPSON'S SUPERMARKETS INC.

Judith CULBERT and Francis Patrick Culbert, by his father and next friend, Patrick Culbert, v. BEECH-NUT CORP.

Supreme Judicial Court of Maine.

Argued Jan. 5, 1982.

Decided April 30, 1982.

Hal S. Weisberger (orally), Frederick P. O'Connell, Augusta, for plaintiffs.

Kelly, Remmel & Zimmerman, U. Charles Remmel, II, Graydon G. Stevens (orally), Portland, for defendants.

Before McKUSICK, C. J., and GODFREY, ROBERTS, CARTER and VIOLETTE, JJ.

VIOLETTE, Justice.

These cases, consolidated below, involve claims for personal injuries suffered by a mother and her infant son when the six month old child choked on a foreign substance contained in a jar of Beech-Nut baby food. Plaintiff Judith Culbert was spoon feeding to her son Francis the food she had purchased at Sampson's Supermarket. In her complaint, Judith Culbert had sought to recover damages for the emotional distress she claims to have suffered as a result of allegedly negligent acts of the defendants. ¹ The Superior Court, Kennebec County, dismissed the mother's claims against Beech-Nut and granted Sampson's motion for summary judgment against the mother. Plaintiff appeals from this adverse ruling. We vacate and remand for further proceedings.

The complaints in this case, identical except in the designation of a defendant, averred that on or about November 4, 1978, plaintiff Judith Culbert purchased a jar of turkey and rice baby food. On the same day, while she was feeding the food to her son, the child allegedly "commenced to choke and gag, and finally spat up a hard substance." The complaint further alleged that it was foreseeable that "as a result of being exposed to the gagging and choking of [Francis Culbert], the plaintiff, Judith Culbert, suffered great anxiety, tension and emotional upset."

Defendants' motions for summary judgment and for dismissal for failure to state a claim were consolidated by the Superior Court. After a hearing and argument by counsel, the presiding justice granted defendants' motions, holding that because plaintiff had not alleged that she was within the "zone of danger" of harm the complaint failed to state a claim for relief upon which damages for negligently inflicted emotional distress could be awarded. ² On appeal, plaintiff maintains that the lower court incorrectly construed Maine law, and contends that the complaint stated a recognized cause of action for negligence. In determining whether the lower court erred in granting defendant Beech-Nut's motion to dismiss, we consider all well-pleaded material allegations of the complaint as admitted. See Harmon v. Harmon, Me., 404 A.2d 1020 (1979); National Hearing Aid Centers, Inc. v. Smith, Me., 376 A.2d 456 (1977). We must also accept as true the uncontroverted facts properly before the lower court which granted defendant Sampson's motion for summary judgment against Judith Culbert. See Steeves v. Irwin, Me., 233 A.2d 126 (1967); Field, McKusick & Wroth, Maine Civil Practice § 56.4 (Supp.1981).

I

The issue presented by this appeal, although of first impression in this jurisdiction, has been the subject of much commentary in the literature and many cases in other jurisdictions. See, e.g., Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Barnhill v. Davis, Iowa, 300 N.W.2d 104 (Iowa 1981); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Lambert, "Tort Liability for Psychic Injuries", 41 B.U.L.Rev. 584 (1961); Comment, "Negligently Inflicted Mental Distress: The Case for an Independent Tort", 59 Geo.L.Rev. 1237 (1971); Comment, "Duty, Foreseeability, and the Negligent Infliction of Mental Distress", 33 Maine L.Rev. 303 (1981). There exist three basis rules defining the scope of a tortfeasor's liability for mental distress negligently inflicted on a bystander: the impact rule, the zone of danger rule, and a foreseeability test first articulated by the California Supreme Court in Dillon v. Legg, supra.

The Law Court adopted the impact rule in 1921 in Herrick v. Evening Express Pub. Co., 120 Me. 138, 113 A. 16 (1921). The Court held that an aggrieved party could not recover damages for injuries resulting from mental or emotional distress unless the individual also sustained a physical impact as a result of the defendant's negligence. Although at one time many jurisdictions adhered to the so-called impact rule, its tenets have now been thoroughly repudiated. See Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961). In 1970, this Court expressly declined to follow the impact rule articulated in Herrick, supra, in part because advances made in medical science had eliminated the once perceived need to define the tortfeasor's liability so narrowly. Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970).

A majority of jurisdictions have adopted the "zone of danger" test for liability. See Comment, "Duty, Foreseeability and the Negligent Infliction of Mental Distress", 33 Maine L.Rev. 303, 313 (1981). Under this rule, the negligent tortfeasor is liable to those persons who suffer mental distress as a result of the defendant's conduct and are within the zone of risk or threat of physical harm.

The arbitrary and unjust consequences of applying a spatial limitation on liability led the California Supreme Court to reject the zone of danger test in Dillon v. Legg, supra. In Dillon, a mother and her daughter saw another daughter struck and killed by a car as they were about to cross the street. The mother and the surviving daughter sought damages for the mental distress they sustained as a result of witnessing the accident. The daughter had been within the danger zone; the mother, standing safely a short distance away, was not in any danger of being struck by the car. The Court ruled that both parties had stated a claim, holding that damages for mental distress could be recovered if the distress was a reasonably foreseeable result of the tortfeasor's conduct. Three factors were deemed particularly relevant in determining whether the injury was foreseeable: 1. whether the plaintiff was located near the scene of the accident, 2. whether the distress resulted from direct observation of the accident, and 3. whether the victim and the plaintiff were closely related. The Court, explaining the significance of these factors, stated:

The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular defendant as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.

(emphasis in the original) 68 Cal.2d 741, 69 Cal.Rptr. at 80-81; 441 P.2d at 920-21. In addition, the California Court implicitly limited liability to situations where the psychic injury was manifested physically. Several jurisdictions have followed Dillon. ³

Two years after Dillon v. Legg was decided, this Court upheld a jury verdict awarding $2,000.00 in damages for negligently inflicted mental distress suffered by the plaintiff when he found a prophylactic in a bottle of Coca-Cola he was drinking. Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970). In so doing, the Court could have permitted recovery under the then current impact rule, since the prophylactic had come in contact with the plaintiff's lips and tongue. However, the Court instead proposed a new rule governing recovery for negligently caused mental distress embracing features of the foreseeability test enunciated in Dillon :

We adopt the rule that in those cases where it is established by a fair preponderance of the evidence there is a proximate causal relationship between an act of negligence and reasonably foreseeable mental and emotional suffering by a reasonably foreseeable plaintiff, such proven damages are compensable even though there is no discernable trauma from external causes.

Id. at 121. The formulation of this test constitutes obiter dictum, and therefore is not binding on us. The issue presented by this appeal remains unresolved by prior Maine case law.

II

We are persuaded that the better rule governing the scope of liability for negligently inflicted mental distress is the test articulated and adopted by the California Supreme Court in Dillon v. Legg, supra. Although we recognize that no rule limiting recovery for mental distress can be free of some element of arbitrariness, we believe that the zone of danger test, never adopted or rejected in Maine, represents an unnecessarily narrow and rigid limit on liability which seems to us far more arbitrary and unjust than the variations of the foreseeability rule adopted by those jurisdictions which...