Clohessy v. Bachelor

• Citation: 237 Conn. 31,675 A.2d 852
• Decision Date: 21 May 1996
• Docket Number: No. 15188,15188
• Court: Supreme Court of Connecticut
• Parties: Mary A. CLOHESSY et al. v. Kenneth L. BACHELOR et al.

Page 852

675 A.2d 852

237 Conn. 31

Mary A. CLOHESSY et al. v. Kenneth L. BACHELOR et al.

No. 15188.

Supreme Court of Connecticut.

Argued Nov. 28, 1995.

Decided May 21, 1996.

Robert I. Reardon, Jr., New London, with whom were Lily Nagardeolekar and, on the brief, Maryann Diaz, for appellants (plaintiffs).

Francis D. Paola, Jr., Wallingford, with whom, on the brief, was Timothy G. Zych, Stevens Point, WI, for appellees (defendants).

Joram Hirsch and Jeffrey S. Wildstein, Bridgeport, filed a brief for the Connecticut Trial Lawyers' Association as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

BERDON, Justice.

In this appeal we must determine whether a parent and a sibling can recover damages for the emotional anguish they sustained by witnessing the parent's other young child being fatally injured as a result of an accident caused by the negligence of the defendant. We conclude that, because certain conditions have been satisfied, both the parent and the sibling of the tort victim may recover damages for the negligent infliction of emotional distress.

In the third count of a three count ¹ complaint, the plaintiffs Mary A. Clohessy (Clohessy) and her son Liam Clohessy (Liam), ² respectively, the mother and brother of the decedent, Brendan P. Clohessy (Brendan), sought damages for the severe emotional distress they allegedly suffered as a result of observing an automobile operated by the defendant Kenneth L. Bachelor ³ strike Brendan, resulting in Brendan's death. After the trial court granted the defendant's motion to strike the third count of the plaintiffs' complaint on the ground that it failed to state a cause of action, ⁴ judgment was rendered against Clohessy and Liam on that count. ⁵ We reverse the trial court's judgment and remand the case for further proceedings.

The facts alleged in, and to be inferred reasonably from, the third count of the complaint are as follows. On March 22, 1993, Brendan, a seven year old child, left St. Mary's Church on Hillhouse Avenue in New Haven with his mother, Clohessy, and his brother, Liam, and attempted to cross Hillhouse Avenue at the intersection of Trumbull Street within a marked crosswalk. Liam was immediately to the right of Clohessy and Brendan was immediately to her left. The defendant was operating an automobile on Trumbull Street at excessive speed when the exterior side view mirror of his vehicle struck Brendan's head, hurling Brendan onto the road. ⁶ Both Clohessy and Liam witnessed the impact and went to Brendan's assistance, holding him as he experienced pain and suffering from his fatal head injuries. They suffered serious injuries as a result of the emotional shock and mental anguish of witnessing the accident that eventually led to Brendan's death.

I

In granting the defendant's motion to strike the plaintiffs' third count seeking damages for emotional distress suffered by a bystander, the trial court relied upon our decisions in Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959); Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980); and Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). We therefore begin our analysis with a review of those cases.

In Strazza, the defendant negligently drove his truck onto the porch of the plaintiff's house. "The impact shook the house, causing the plaintiff to drop the dishes [she was holding], lose her balance, and lean against the sink.... The plaintiff screamed with fright and became hysterical, thinking of disaster by earthquake.... Sometime after the impact, her husband inquired about [their seven year old child], and the plaintiff thinking that the boy had been on the porch, became fearful that he had been injured. This fear aroused a new anxiety." Strazza v. McKittrick, supra, 146 Conn. at 716-17, 156 A.2d 149. The plaintiff's only medical treatment was for a nervous condition that resulted from the fear of injury to her child. The court concluded that the plaintiff, because she "was within the range of ordinary danger," could recover damages for the emotional distress she experienced as a result of her being put in fear for her own safety, even though she had sustained no consequential physical injury. Id., at 718, 156 A.2d 149. In reaching its conclusion, the court relied on Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941), which held that "where it is proven that negligence proximately caused fright or shock [with respect to the person's own safety] in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover."

In Strazza, however, the court did not permit the plaintiff to recover for the fright she had suffered from mistakenly believing that her child had been on the porch and had been injured. Relying upon the decisions of the courts of other states prior to 1959, which universally denied recovery for bystander emotional distress, the court held that the plaintiff "cannot recover for injuries occasioned by fear of threatened harm or injury to the person or property of another.... Such injuries are too remote in the chain of causation to permit recovery.... Even where a plaintiff has suffered physical injury in the accident, there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another. [Annot.] 18 A.L.R.2d 220, 224, 234; 38 Am.Jur. 660, § 18; 67 C.J.S. 761, § 55." (Citations omitted.) Strazza v. McKittrick, supra, 146 Conn. at 719, 156 A.2d 149.

In Amodio, the plaintiff mother sought damages for emotional distress sustained as a result of the defendant physician's alleged medical malpractice that she claimed caused the death of her daughter. The plaintiff urged this court to recognize a cause of action for bystander emotional distress as set forth in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968). The California Supreme Court in Dillon, relying on established principles of negligence, focused on foreseeability, and held that "[s]ince the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis." Id., at 740, 441 P.2d 912, 69 Cal.Rptr. 72. The Dillon court then set forth three factors to consider in determining whether the emotional injury to the bystander is reasonably foreseeable: "(1) Whether [the] 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 [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether [the] plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." Id., at 740-41, 441 P.2d 912, 69 Cal.Rptr. 72.

The Dillon court went on to state that "[t]he evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously [the] defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case." Id., at 741, 441 P.2d 912, 69 Cal.Rptr. 72.

The court in Amodio recognized that a "growing number of jurisdictions, beginning in 1968 with the California decision in Dillon ... have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party." Amodio v. Cunningham, supra, 182 Conn. at 87, 438 A.2d 6. The court also observed that under Dillon "the requirement of 'sensory and contemporaneous observance' does not require a visual perception of the impact although it does require that the plaintiff bystander otherwise apprehend the event." Id., at 89-90, 438 A.2d 6. Without rejecting the foreseeability approach, the Amodio court held that the plaintiff mother could not recover under Dillon because she did not have a contemporaneous sensory perception of the doctor's acts of negligence. "Merely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander." Id., at 90, 438 A.2d 6.

This court again addressed the question of bystander emotional distress based upon medical malpractice in Maloney v. Conroy, supra, 208 Conn. 392, 545 A.2d 1059, where the tort victim was the plaintiff's mother. After Amodio, but before Maloney was decided, however, California, in Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985), relaxed Dillon 's contemporaneous sensory perception requirement in the context of a medical malpractice case. In Ochoa, as in Maloney, the plaintiff observed the effects of the medical malpractice over a period of time. The Supreme Court of California concluded that "the 'sudden occurrence' requirement is an unwarranted restriction on the Dillon...