727 P.2d 1038 (Alaska 1986), S-79, Tommy's Elbow Room, Inc. v. Kavorkian

Docket NºS-79.
Citation727 P.2d 1038
Opinion JudgeRABINOWITZ, Chief Justice.
Party NameTOMMY'S ELBOW ROOM, INC., d/b/a Tommy's Elbow Room, Appellant, v. Ralph KAVORKIAN, Individually and as Personal Representative of the Estate of Gladys Marie Kavorkian, Sarah Kavorkian, and Fred Brantingham, Individually and as Father and Best Friend of the Deceased, Tonya Brantingham, and Martha Brantingham, Appellees.
AttorneyJoseph L. Paskvan, Rice, Hoppner Brown & Brunner, Fairbanks, for appellant. Marcus R. Clapp and John V. Acosta, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees.
Case DateOctober 31, 1986
CourtSupreme Court of Alaska

Page 1038

727 P.2d 1038 (Alaska 1986)

TOMMY'S ELBOW ROOM, INC., d/b/a Tommy's Elbow Room, Appellant,


Ralph KAVORKIAN, Individually and as Personal Representative

of the Estate of Gladys Marie Kavorkian, Sarah Kavorkian,

and Fred Brantingham, Individually and as Father and Best

Friend of the Deceased, Tonya Brantingham, and Martha

Brantingham, Appellees.

No. S-79.

Supreme Court of Alaska

October 31, 1986

Page 1039

Joseph L. Paskvan, Rice, Hoppner Brown & Brunner, Fairbanks, for appellant.

Marcus R. Clapp and John V. Acosta, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees.


RABINOWITZ, Chief Justice.

In Kavorkian v. Tommy's Elbow Room, 694 P.2d 160 (Alaska 1985) (Kavorkian I ), 1 this court upheld the superior court's decision to give a standard proximate cause jury instruction over plaintiffs' (collectively referred to as "Kavorkian") objection. We did not reach the issues raised on cross-appeal because of tat outcome. Kavorkian's subsequent petition for rehearing on the proximate cause issue was granted. In Kavorkian v. Tommy's Elbow Room, 711 P.2d 521 (Alaska 1985) (Kavorkian II ), we held that if the tortfeasor's intoxication is a proximate cause of the accident, a liquor licensee who, with criminal negligence, serves the drunken person will be liable for damages. We now consider the cross-appeal issues originally raised in Kavorkian I.

Page 1040


    Tommy's Elbow Room ("Tommy's") argues on cross-appeal that in a new trial it should not have to defend against any claims for emotional distress. The superior court instructed the jury during the first trial that, if certain facts were found, plaintiffs Fred and Martha Brantingham could recover for the emotional distress the accident had caused them. We conclude that on retrial the superior court should give an instruction on negligent infliction of emotional harm, but that an instruction for intentional infliction would be improper.

    When Pears' truck hit them, Marie and Sarah Kavorkian and Tonya Brantingham were returning home from a Rainbow Girls function. Fred Brantingham, Tonya's father, also had been at the function, but stayed behind to chair a committee meeting. On his way home, Brantingham drove through the intersection of Third Street and the Steese Expressway and noticed that there had been an accident. While he did not realize that the Kavorkian car was involved, he sensed that something was "very seriously wrong." When he reached his house, he found that Tonya was not yet there. He testified: "I went home and I knew--I knew what I was going to find ... I knew that Tonya wasn't going to be there. And so I went home and I found out that she in fact was not there and I talked to my wife--I told my wife that I'd go back...." Brantingham drove back to the intersection and discovered that police and medical technicians were attempting to remove Tonya from the Kavorkians' smashed Datsun. At trial he described what he saw at the scene of the accident:

    [T]hey were taking her out of the car, it was difficult and so they took her out by hanging on to her hair to support her head. And, she had the tube sticking out of her mouth, there was a paramedic who had come through from the other side of the car and picked up the lower part of her body and there was one that met her on this side of the vehicle and--they were doing their best. But, they were hanging on to her head by her hair and then they almost dropped her. Almost dropped her. It was ... hard to stand there and watch that, but you know that ... you running in there could actually be ... harmful. And so, yeah, I remember that. I'll always remember that.

    [Tr. 1285] While his daughter was taken to the hospital, Brantingham drove home to get his wife Martha and their son Eric. Tonya's heart continued to beat for several hours, and her parents were present when she died.

    A. Fred Brantingham's Claim for Negligently Inflicted Emotional Distress.

    Tommy's argues that Fred Brantingham cannot recover for negligently inflicted emotional distress because he was not in the "zone of danger" when the accident occurred. This is the standard established by the Restatement (Second) of Torts § 313 (1965):

    § 313. Emotional Distress Unintended.

    (1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor

    (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and

    (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.

    (2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.

    [Emphasis added.]

    While the "zone of danger" standard was once the accepted rule for emotional distress claims, a substantial and growing minority of states have rejected it within the

    Page 1041

    last decade. 2 Many courts have adopted the guidelines set forth by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968):

    (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

    If these factors are strictly applied, Fred Brantingham cannot recover even under Dillon. Their application has not, however, been so strict. In Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 667-668, 703 P.2d 1, 6-7 (1985), the California Supreme Court concluded that the Dillon guidelines did not require emotional distress to be caused by a brief and sudden occurrence viewed contemporaneously by the plaintiff in order to be compensable. 3 The court reasoned that such a restriction would "arbitrarily [limit] liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event...." Id. 216 Cal.Rptr. at 668, 703 P.2d at 7. It stressed that the Dillon factors were merely guidelines to be used in assessing whether the plaintiff was a foreseeable victim of the defendant's negligence. Id. 216 Cal.Rptr. at 669, 703 P.2d at 8.

    Under this liberal interpretation of Dillon, focusing on the foreseeability of distress to the plaintiff, the California courts have allowed emotional distress claims in cases where the plaintiff did not actually observe the tortious event. In Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969), a mother came upon her child moments after he had been injured in an explosion. The court observed that the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself, and that therefore the plaintiff had met the contemporaneous observance requirement of Dillon. Id. 79 Cal.Rptr. at 725. In Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (1978), a mother was looking for her three-year-old son. She heard a neighbor scream, " 'It's Danny.' [She] immediately had the dreadful knowledge that Danny had somehow gotten into the Beckers' swimming pool and that he was hurt." Id. 145 Cal.Rptr. at 659. She arrived on the scene in time to see her missing child pulled from a neighbor's pool and efforts made to resuscitate him. He died three days later. The Nazaroff court concluded that there were triable issues of fact as to whether the alleged harm to the mother resulted from an emotional shock proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants' negligent act, which was the

    Page 1042

    proximate cause of the injury and death of her son. 4

    However, at least one California court has somewhat limited the expansion of Dillon. In Madigan v. City of Santa Ana, 145 Cal.App.3d 607, 193 Cal.Rptr. 593 (1983), a parent and step-parent arrived at the accident scene fifteen minutes after the accident occurred. They observed the damaged cars and knew that their son was in the Volkswagen; they were told that all occupants of the Volkswagen had been killed. The court of appeal held that Dillon precluded a cause of action by the parent and step-parent for the negligent infliction of emotional distress, stating that

    [t]he rule of Dillon as applied in all subsequent cases requires some sensory and contemporaneous observance of the accident. That is clearly absent here; there is no showing plaintiffs saw, heard or otherwise sensorially perceived the event which produced the injury. To expand the clear requirements of Dillon would without question begin "a first excursion into the 'fantastic realm of infinite liability,' " so ominously predicted by the dissent in Dillon. 5

    Id. 193 Cal.Rptr. at 595-96 (emphasis in original).

    The Madigan approach is not faithful to the Dillon progeny and has been rejected in a more recent California appellate decision. In Nevels v. Yeager, 152 Cal.App.3d 162, 199 Cal.Rptr. 300, 305 (1984), the court noted that the Dillon majority rejected the claim that a meritorious cause of action...

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