Amodio v. Cunningham

• Decision Date: 12 August 1980
• Citation: 182 Conn. 80,438 A.2d 6
• Court: Connecticut Supreme Court
• Parties: Jeanne AMODIO, Administratrix v. Peter R. CUNNINGHAM et al. (ESTATE OF Jennifer AMODIO).

Page 6

438 A.2d 6

182 Conn. 80

Jeanne AMODIO, Administratrix v.Peter R. CUNNINGHAM et al. (ESTATE OF Jennifer AMODIO).

Supreme Court of Connecticut.

Argued June 3, 1980.

Decided Aug. 12, 1980.

Joseph D. Garrison, New Haven, with whom was Janet B. Arterton, New Haven, for appellant(plaintiff).

Arnold J. Bai, Bridgeport, with whom was Karen L. Karpie, Bridgeport, and, on the brief, Stephen P. Sztaba, Bridgeport, for appellees(defendants).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

COTTER, Chief Justice.

In this action the plaintiff, individually and as administratrix of the estate of her daughter, seeks to recover damages from the defendant physicians for alleged negligence which she claims resulted in the death of her minor daughter.The second count of the complaint ¹ as amended alleges a cause of action on behalf of the plaintiff in her individual capacity for physical, mental and emotional harm caused by witnessing the death of her daughter which was alleged to be the result of the defendants' malpractice.The facts upon which the plaintiff relies under this count in seeking a recovery individually allege that she witnessed the deterioration of her daughter's health and the momentary stopping of her daughter's heart while being administered mouth-to-mouth resuscitation by the plaintiff, and that she participated in the decision to discontinue extraordinary life-support methods.The defendants' motion to strike the second count of the amended complaint on the ground that it failed to state a cause of action which is cognizable in this state was granted by the trial court.The court rendered judgment in favor of the defendants as to that count from which the plaintiff appeals.

The plaintiff urges this court to "adopt a simple negligence analysis, predicated on foreseeability" in this appeal and to abrogate the rule expressed in Strazza v. McKittrick, 146 Conn. 714, 719, 156 A.2d 149, 152, that "(e)ven where a plaintiff has suffered physical injury ... there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another."

Where an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader.Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385;Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919;Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486;Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418.For purposes of appeal, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71;McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437.SeePractice Book, 1978, § 151.The following facts are alleged in the amended complaint: On or about April 21, 1975, the plaintiff's daughter, Jennifer, who was a patient of the defendants, Dr. Peter R. Cunningham and Dr. Alan C. Mermann, began to wheeze heavily and had difficulty breathing.On or about that same day, the plaintiff contacted Mermann and requested that he see Jennifer because of her respiratory problems.Mermann did not examine Jennifer but did renew a previous prescription of penicillin and Nova-Histine.Jennifer's condition worsened during the following week causing the plaintiff to take her to the defendants' office on or about Sunday, April 27, 1975, where she was examined by Cunningham and allowed to return home.In the early morning hours of April 28, 1975, Jennifer began gasping for breath and her heart stopped momentarily while her mother was administering mouth-to-mouth resuscitation.Jennifer was rushed to the hospital where she died two days later after extraordinary life-support methods were discontinued.The complaint alleges that the defendants were negligent ² in failing to properly diagnose and treat Jennifer's disease and that such negligence was the proximate cause of her death and of the plaintiff's emotional distress.The sole issue in the present appeal, which is confined to the second count, is whether the plaintiff, suing in her individual capacity, has satisfied her burden of alleging sufficient facts to establish a cognizable cause of action.

There is a divergence of opinion among the jurisdictions ³ regarding the recognition of a cause of action for emotional distress to a bystander arising from witnessing the negligently inflicted injury of another.⁴Until very recently, the prevailing rule had been to deny such recovery.See generally annot., "Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury,"29 A.L.R.3d 1337.This view is based on the consideration that the emotional injuries suffered by the plaintiff as a witness to the tortfeasor's negligence are too remote from the defendant's negligent act or that no duty is owed to the plaintiff to prevent the shock or distress that comes from witnessing that act.SeeStrazza v. McKittrick, 146 Conn. 714, 156 A.2d 149;Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419;Waube v. Warrington, 216 Wis. 603, 258 N.W. 497.⁵The rationale underlying the denial of recovery to a bystander for negligently inflicted emotional harm was articulated in Tobin v. Grossman, supra, where the New York Court of Appeals held that a cause of action does not lie for emotional injury sustained by a plaintiff solely as a result of injuries negligently inflicted directly upon another regardless of the relationship of the parties or the fact that the plaintiff was an eyewitness to the negligent act.In Tobin, the plaintiffmother sought recovery for emotional distress which she suffered when her two-year-old son was struck by an automobile negligently operated by the defendant.The plaintiff was inside a neighbor's home when the accident occurred and did not witness the accident.The plaintiff, however, heard the screech of brakes, noted the absence of her child and immediately went outside and saw her child lying injured on the ground.The issue, as framed by the court, was whether to create a new legal duty and therefore a new cause of action.Noting that there were "no new technological, economic, or social developments which have changed social and economic relationships,"the court stated that a "radical change in policy" was required before the cause of action urged by the plaintiff would be recognized.Id., 615, 301 N.Y.S.2d 558, 249 N.E.2d 422.

The primary consideration militating against adoption of the cause of action urged by the plaintiff in Tobin was the inability to place reasonable limitations on the scope of the tortfeasor's liability; such liability would therefore become unduly burdensome.⁶Basing the existence of a cause of action solely on the foreseeability of harm to the plaintiff, the court in Tobin believed, would not resolve the problem."If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined.It would extend to older children, fathers, grandparents, relatives or others in loco parentis, and even any other affected bystanders.Moreover, in any one accident, there might well be more than one person indirectly but seriously affected by the shock of injury or death to the child."Id., 616, 301 N.Y.S.2d 559, 249 N.E.2d 423.Similarly, a rule requiring that the plaintiff witness the accident, it was decided, would not provide the desired limitation.As the court stated: "Any rule based solely on eyewitnessing the accident could stand only until the first case comes along in which the parent is in the immediate vicinity but did not see the accident.Moreover, the instant advice that ones' child has been killed or injured by telephone, word of mouth, or by whatever means, even if delayed, will have in most cases the same impact.The sight of gore and exposed bones is not necessary to provide special impact on a parent."Id., 617, 301 N.Y.S.2d 560, 249 N.E.2d 423.The court also noted that, assuming there are cogent reasons for extending liability in favor of victims of shock, there appears to be no rational way to limit the scope of liability except by establishing arbitrary distinctions.Id., 618.SeeProsser, Torts (4th Ed.) § 54, pp. 334-35.

A growing number of jurisdictions, beginning in 1968 with the California decision in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party.⁷In Dillon a minor child was killed when she was struck by an automobile negligently operated by the defendant.The complaint alleged, inter alia, a cause of action for physical and mental pain and suffering inflicted upon the victim's mother and sister both of whom witnessed the accident.The trial court rendered judgment on the pleadings in favor of the defendant as to the mother's cause of action and denied the defendant's motion for judgment on the pleadings as to the sister's count on the grounds that the mother was not in the zone of danger from the defendant's negligence whereas the sister may have been within that zone.A divided court(four to three) held that the cause of action alleged by the plaintiffmother was cognizable.

The central issue facing the court in Dillon was whether to recognize a duty of care owed by the defendant to the plaintiffmother.In the court's view, the issue was essentially to determine whether the risk of emotional harm to the plaintiff was reasonably foreseeable in the particular factual setting of the case.⁸Recognizing the need "to limit the otherwise potential infinite liability which would follow every negligent act";id., 739, 69 Cal.Rptr. 79, 441...