444 A.2d 433 (Me. 1982), Culbert v. Sampson's Supermarkets Inc.

Citation:444 A.2d 433
Opinion Judge:VIOLETTE,
Party Name: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.
Attorney: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.
Judge Panel:Before McKUSICK, C. J., and GODFREY, ROBERTS, CARTER and VIOLETTE, JJ.
Case Date:April 30, 1982
Court:Supreme Judicial Court of Maine

Page 433

444 A.2d 433 (Me. 1982)

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.

April 30, 1982

Argued Jan. 5, 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

Page 434

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

Page 435

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...

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