Bowen v. Lumbermens Mut. Cas. Co.

Decision Date25 May 1994
Docket NumberNo. 92-1728,92-1728
Citation183 Wis.2d 627,517 N.W.2d 432
PartiesFloyd E. BOWEN, Special Administrator of the Estate of Steven W. Bowen, Floyd E. Bowen and Sharon A. Bowen, Plaintiffs-Appellants-Petitioners, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a foreign insurance corporation and Elroy J. Rautmann, Defendants-Respondents, Champus/Champva, a federal governmental insurance corporation, Defendant.
CourtWisconsin Supreme Court

For the defendants-respondents there was a brief by William J. Katt, Christine M. Benson and Kasdorf, Lewis & Swietlik, S.C., Milwaukee and oral argument by William J. Katt.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed March 17, 1993, 175 Wis.2d 624, 502 N.W.2d 283, affirming a judgment of the circuit court for Sheboygan county, John B. Murphy, circuit judge. The circuit court dismissed two claims: (1) Sharon Bowen's claim for negligent infliction of severe emotional distress arising from her viewing the immediate aftermath of her son's fatal injury, allegedly caused by defendant Elroy J. Rautmann's negligence, and (2) the claim of Steven Bowen's estate for negligent infliction of emotional distress on Steven Bowen arising from his emotional trauma immediately preceding the fatal collision between his bicycle and Elroy Rautmann's vehicle. The court of appeals affirmed the dismissal, concluding that neither claim is recognized under Wisconsin law. We reverse that part of the decision of the court of appeals dismissing Sharon Bowen's claim and affirm that part dismissing the estate's claim.

Both claims require us to reexamine the tort of negligent infliction of emotional distress. Myriad circumstances may give rise to claims for negligent infliction of emotional distress. Sharon Bowen's claim is one kind of claim that may arise. Her claim compels us to focus on the liability to a "bystander" of a tortfeasor who negligently and seriously injures or kills another. We use the word "bystander" as a shorthand reference to a plaintiff who alleges emotional distress arising from a tortfeasor's negligent infliction of physical harm on a third person.

The estate's claim is an example of another kind of claim for negligent infliction of emotional distress. The claim of the estate of Steven Bowen compels us to focus on the liability of a negligent tortfeasor for pre-impact emotional distress when the victim dies without regaining consciousness.

We conclude that a plaintiff claiming negligent infliction of emotional distress, regardless of the fact situation in which the claim arises, must prove the following elements: (1) that the defendant's conduct fell below the applicable standard of care, (2) that the plaintiff suffered an injury, and (3) that the defendant's conduct was a cause-in-fact of the plaintiff's injury. The factfinder determines cause-in-fact. The court determines whether considerations of public policy relieve the defendant of liability in a particular case. These public policy considerations are an aspect of legal cause, not cause-in-fact.

We further conclude, borrowing concepts from the tort of intentional infliction of emotional distress, that in a cause of action for negligent infliction of emotional distress the injury a plaintiff must prove is severe emotional distress; but the plaintiff need not prove physical manifestation of that distress. Alsteen v. Gehl, 21 Wis.2d 349, 124 N.W.2d 312 (1963).

In examining Sharon Bowen's claim as a bystander, we abandon the zone of danger and fear for one's safety rules this court has applied in earlier bystander cases. We conclude that a bystander's claim for negligent infliction of emotional distress, like other claims for negligent infliction of emotional distress, are governed by the traditional rules applicable to negligence actions. Applying these rules we conclude that Sharon Bowen has alleged the elements of a cause of action for negligent infliction of emotional distress. We now turn to considerations of public policy. As we explain more fully later, three factors are critical to the determination of legal cause in the bystander fact situation. First, the injury suffered by the victim must have been fatal or severe. Second, the victim and the plaintiff must be related as spouses, parent-child, grandparent-grandchild or siblings. Third, the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene. Applying these factors in this case to determine whether public policy considerations preclude liability, we conclude that Sharon Bowen's claim is not barred by public policy considerations. Accordingly, we reverse that part of the decision of the court of appeals dismissing Sharon Bowen's claim and remand that cause to the circuit court for further proceedings not inconsistent with this opinion.

Our analysis of the claim of the estate leads us to conclude that, although the estate has set forth the elements of the tort of negligent infliction of emotional distress, the claim may not proceed on grounds of public policy. The claim is too speculative and would be too likely to open the way for fraudulent claims. Accordingly, we affirm that part of the decision of the court of appeals affirming the dismissal of the claim of the estate of Steven Bowen.

We first state the facts and then discuss each of the claims.

I.

The record in this case consists of the complaint, amended complaint, answers, and medical reports. 1 For purposes of deciding the questions of law presented, the following facts are accepted as undisputed.

According to the complaint, on October 12, 1990, at about 6:30 p.m., a vehicle driven by Elroy J. Rautmann, insured by Lumbermens Mutual Casualty Insurance Co., negligently collided with 14-year-old Steven Bowen who was riding his bicycle. Steven Bowen was fatally injured; he died in a hospital soon after the accident. The parties apparently concede that Steven Bowen never regained consciousness between the time of the accident and his death. Two claims for damages are at issue in this proceedings. 2

First, Sharon Bowen, Steven Bowen's mother, seeks damages for negligent infliction of emotional distress. According to the amended complaint, Sharon Bowen did not witness the collision itself; she arrived at the scene a few minutes after the collision occurred and personally witnessed its violent and gruesome aftermath. She saw her severely injured son trapped beneath the defendant's car. She watched the prolonged rescue attempt. The complaint asserts that these experiences caused Sharon Bowen extreme emotional and psychic injuries with accompanying physical symptoms including hysteria, insomnia, nausea and the disruption of work and family relationships.

Second, the estate of Steven Bowen apparently seeks damages for negligent infliction of emotional distress on Steven Bowen immediately prior to the collision. The estate asks us to interpret the complaint liberally and infer that Steven Bowen was aware of the imminent collision and experienced fear and anguish prior to the impact.

Asserting that Sharon Bowen and the estate fail to state claims upon which relief can be granted, Elroy Rautmann and his insurer filed a motion for partial summary judgment. The circuit court dismissed these claims on the merits. The court of appeals granted Sharon Bowen leave to appeal the non-final judgment dismissing her claim for negligent infliction of emotional distress. The estate appealed as of right the final judgment dismissing its claim.

The same questions of law are presented to this court as were presented to the circuit court and the court of appeals. We review the complaint in the same manner as the circuit court and the court of appeals benefitting from their analyses and opinions. Pleadings are to be liberally construed, and a claim will be dismissed only if "it is quite clear that under no conditions can the plaintiff recover." Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660 (1979). The complaint must be viewed most favorably to the plaintiff. Accepting the allegations as true, we must decide whether a plaintiff has stated a claim upon which relief may be granted.

II.

Sharon Bowen's claim requires us to reexamine the case law governing the tort of negligent infliction of emotional distress. Specifically, we focus on the liability to a bystander of a tortfeasor who negligently and seriously injures another.

The essence of Sharon Bowen's argument in support of her claim for negligent infliction of emotional distress is that the court should abandon the so called "zone of danger" rule it adopted in 1935 in Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). In contrast, Elroy Rautmann and his insurer urge the court to adhere to the Waube line of cases and hold that only a bystander who is in the zone of danger, who fears for his or her own physical safety, and who witnesses the serious injury or death of a close relative, may recover damages from a negligent tortfeasor for the emotional distress leading to physical injuries.

The parties agree that Sharon Bowen was not in the zone of physical danger, that she did not fear for her own personal safety, and that she did not witness the defendant's vehicle hitting her son. We conclude that this court effectively abandoned the zone of danger rule in Garrett v. City of New Berlin, 122 Wis.2d 223, 362 N.W.2d 137 (1985), and today we formally forsake it. 3

A.

The tort of negligent infliction of emotional distress has troubled this court and other courts for many years. Our decision today demands an appraisal of the evolution of our cases on negligent infliction of emotional distress, especially those arising over the almost 60 years since our discussion of a bystander's claim in Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). 4

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