Beck v. State, Dept. of Transp. and Public Facilities

• Decision Date: 31 July 1992
• Docket Number: No. S-4296,S-4296
• Citation: 837 P.2d 105
• Parties: Ida Marie (Pavao) BECK, Individually, and as Personal Representative of the Estate of Jerrie Beck, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee.
• Court: Alaska Supreme Court

Page 105

837 P.2d 105

Ida Marie (Pavao) BECK, Individually, and as Personal Representative of the Estate of Jerrie Beck, Appellant, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC

FACILITIES, Appellee.

No. S-4296.

Supreme Court of Alaska.

July 31, 1992.

David V. George, Juneau, and W.G. Ruddy, Ruddy, Bradley & Kolkhorst, Juneau, for appellant.

Gregory W. Lessmeier and Michael L. Lessmeier, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellee.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

MOORE, Justice.

Jerrie Beck was killed when the car she was driving left the roadway along a stretch of road from which state highway crews had been removing landslide debris over the previous ten days. Acting both individually and as the personal representative of Jerrie's estate, her mother, Ida Marie Beck, sued the State. After trial and a jury verdict for the State, Beck appeals.

I. FACTS AND PROCEEDINGS

On the evening of October 24, 1986, seventeen-year-old Jerrie Beck drove along the Mitkof Highway near Petersburg with four passengers. Near mile 6.2, her car left the roadway. Jerrie and one passenger were killed. A short time before the accident, the youths had obtained several bottles of wine coolers. Jerrie had consumed some of the wine cooler beverage in the minutes before the accident.

Ten days before the accident, landslides had covered the roadway near mile 6.2 of the Mitkof Highway. Following the landslide, crews from the Alaska State Department of Transportation and Public Facilities (DOTPF) erected signs, flashing lights and barricades at the site of the slide, and proceeded to clear slide material from the roadway over the next several days. Early on the day of the accident, DOTPF crews "finished up" the slide cleanup and removed the signs and barricades, but planned to give the area a final sweeping the following day with a mechanical broom. A DOTPF maintenance supervisor testified he knew that the work completed on October 24 left a "thin film" of debris which would have been redistributed by traffic to partially cover the lines on the roadway.

Ida Marie Beck sued the State of Alaska and DOTPF (collectively, "State") both in her personal capacity and as a representative of Jerrie's estate. The complaint alleged negligent maintenance, repair, design and failure to adequately warn of the dangerous condition of the roadway, and included claims for the decedent's suffering, wrongful death, and negligent infliction of emotional distress. On the State's motion for partial summary judgment, the trial court dismissed Beck's emotional distress claim and declared Jerrie Beck negligent per se for violating 13 Alaska Administrative Code 02.545(a), which prohibits the consumption of alcoholic beverages while driving.

Beck's theory at trial was that the rainsoaked slide debris on the roadway contributed to the accident by obscuring the centerline and foglines, thus depriving Jerrie Beck of guidance. Beck also sought to prove that the slide debris caused Jerrie to lose control of the vehicle. The State attributed the accident to Jerrie Beck's execution of a "sharp overcorrection" to the left after she steered the vehicle too far to the right. The jury, by special verdict, found for the State, concluding that the roadway was not in a dangerous condition at the time of the accident. Judgment was subsequently entered for the State.

Beck appeals, citing a variety of errors, including the denial of her challenge for cause of a juror, the admission of accident reconstruction evidence, certain jury instructions, the dismissal of her negligent infliction of emotional distress claim, and the trial court's rulings on issues relating to the correct measure of damages in wrongful death actions.

II. DISCUSSION

A. Negligent Infliction of Emotional Distress

Beck claims that the trial court erred in granting the State's summary judgment motion dismissing her claim for negligent infliction of emotional distress (NIED). We agree.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Alaska R.Civ.P. 56. A resolution of the question of whether a plaintiff can assert a claim for NIED is essentially an inquiry into whether the defendant should reasonably foresee the injury to the plaintiff and thus owes the plaintiff a duty of care. See Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). The existence and extent of a duty of care are questions of law for the court to determine. Estate of Breitenfeld v. Air-Tek, Inc., 755 P.2d 1099, 1102 (Alaska 1988); Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir.1985).

In Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986), we adopted the guidelines set forth by the California Supreme Court in Dillon v. Legg for determining whether the injury to a plaintiff asserting a NIED claim was "foreseeable" to the defendant, thus establishing a duty of care:

(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.

727 P.2d at 1041 (citing Dillon, 69 Cal.Rptr. at 80, 441 P.2d at 920). In Kavorkian and subsequent cases we rejected the "rigid requirement of sensory and contemporaneous observance of the accident" and instead focused on "the reasonable foreseeability that the plaintiff-witness would suffer emotional harm." Id. at 1043; Mattingly v. Sheldon Jackson College, 743 P.2d 356, 365 (Alaska 1987); Croft v. Wicker, 737 P.2d 789, 791-92 (Alaska 1987). In spite of our liberal interpretation of the Dillon guidelines, "there remains a requirement that the shock result more or less contemporaneously with the plaintiff's learning of the nature of the victim's injury." Mattingly, 743 P.2d at 365-66.

The facts of the present case are intermediate between Kavorkian and Mattingly. ¹ Here, Beck was at her home in Petersburg, approximately six miles from the accident scene, when she learned of the accident from friends. She and her friends immediately drove to the accident scene, where rescue workers prevented them from approaching the wrecked vehicle which still contained her injured daughter. Beck and her friends then drove to the hospital. Within minutes of their arrival, Jerrie was brought into the hospital on a gurney and Beck saw her injured daughter for the first time.

In both Kavorkian and Mattingly, we cited with approval Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980), in which the Massachusetts Supreme Judicial Court allowed a mother and her children to recover for emotional distress resulting from the sight of their seriously injured husband-father in a hospital after a work-related accident. 727 P.2d at 1042 n. 4; 743 P.2d at 365. In Ferriter, the court stated that

[a] plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital. So long as the shock follows closely on the heels of the accident, the two types of injury are equally foreseeable.

413 N.E.2d at 697. Where, as here, the plaintiff experiences shock as the result of a sudden sensory observation of a loved one's serious injuries during an uninterrupted flow of events following "closely on the heels of the accident," such emotional injury is foreseeable and the plaintiff is entitled to assert a claim for NIED. See also Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989) (though not present at the accident scene, parents of a 28 year old mechanic, whose neck was broken when a car inexplicably lurched backward, were allowed to recover for NIED because they lived on the same island, witnessed the consequences of the accident, and went immediately to the hospital on learning of the accident and were told their son would never walk).

The State urges us to restrict NIED claims by applying the Dillon factors as strict requirements rather than guidelines, the approach taken by the California Supreme Court in Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989). ² We decline to adopt the Thing approach. Rather, we believe that courts "should apply the concepts of foreseeability and duty to negligent infliction of emotional distress actions, with a view toward a policy favoring reasonable limitations on liability." 257 Cal.Rptr. at 895, 771 P.2d at 844 (Broussard, J., dissenting).

We believe that both justice and the policy favoring reasonable limitations on liability can be served with a less restrictive approach than that taken by the Thing court. In Thing, the majority distinguished between the emotional distress which results from the observation of the injury-producing event and that which results from learning of the injury or death, or observing the pain and suffering, but not the cause of the injury. 257 Cal.Rptr. at 879, 771 P.2d at 828. While recognizing the arbitrary nature of this distinction, the court reasoned that the law should provide a remedy for the former, but not the latter. Id. We believe, however, that one who is thrust, either voluntarily or involuntarily, into such dramatic events and who makes a sudden sensory observation of the traumatic injuries of a close relative in the immediate aftermath of the event which produced them is no less entitled to assert a claim for his or her emotional injuries than one who actually witnessed the event. By contrast, one who learns of the injury or death of a loved one, or who...