Clomon v. Monroe City School Bd.

• Decision Date: 03 December 1990
• Docket Number: No. 90-C-0915,90-C-0915
• Citation: 572 So.2d 571,65 Ed. Law Rep. 248
• Parties: 65 Ed. Law Rep. 248 Sonya R. CLOMON v. MONROE CITY SCHOOL BOARD.
• Court: Louisiana Supreme Court

Page 571

572 So.2d 571

65 Ed. Law Rep. 248

Sonya R. CLOMON v. MONROE CITY SCHOOL BOARD.

No. 90-C-0915.

Supreme Court of Louisiana.

Dec. 3, 1990.

Dissenting Opinion by Justice Cole

Dec. 14, 1990.

Additional Reasons in Support of Majority Opinion Jan. 4, 1991.

Additional Reasons in Dissent Jan. 11, 1991.

Rehearing Denied Jan. 30, 1991.

Thomas G. Zentner, Jr., Theus, Grisham, Davis & Leigh, Monroe, for Monroe City School Bd. defendant-applicant.

Milton Dale Peacock, Monroe, for Sonya R. Clomon plaintiff-respondent.

DENNIS, Justice.

This is a suit by a young woman against a school board for damages because of the severe emotional distress she sustained, without contemporaneous physical injury, when her automobile struck and killed a four year old school boy who darted into her path after the school board's bus driver and bus attendant discharged the boy from the bus, prematurely deactivated the bus warning devices and drove away, leaving the boy alone to cross the street to his home. The trial court held the school board liable for the emotional distress and subsequent physical and mental illnesses its employees negligently inflicted on the young woman but reduced her recovery by 30% because of her negligent failure to see the boy before he ran into the street. The court of appeal affirmed, Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990), and this court granted certiorari to determine whether the decisions below were consistent with the bystander recovery rule announced in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

The deceased, Antonio Benjamin, was a four year old handicapped special education student who lived on Powell Avenue in Monroe. During the 1983 fall school term the Monroe City School Board provided him with school transportation in a mini-bus designated for handicapped children. Each school day Antonio was transported to and from his house under the care and supervision of the school bus operator and a special education attendant.

We see no error in the trial court's findings of fact based on conflicting testimony of witnesses to the accident: On the afternoon of the accident, the bus driver halted the bus opposite Antonio's house on Powell Avenue and engaged the bus warning lights and retractable stop signs. Powell Avenue at that point was a three lane thoroughfare, and the bus was stopped partially occupying the two lanes farthest from Antonio's house. The attendant exited the bus with Antonio, escorted him around the front of the bus, left him standing by the driver's side of the bus in the center lane, and reboarded the bus. The bus driver, who assumed that the attendant had seen Antonio safely across the street, disengaged the warning devices and started to drive away. Sonya Clomon, an eighteen year old college student, who was driving her parents' automobile, saw the school bus with its warning lights activated as she approached Powell Avenue on a side street about one quarter mile away. But when Sonya turned onto Powell Avenue and drove toward the bus at a lawful speed of 35 MPH, the bus warning lights and stop signs had been disengaged, and the bus began to pull away from its stop. Sonya did not see Antonio standing in the center lane by the driver's side of the bus. As her vehicle passed the front of the bus, she saw Antonio attempting to cross the street. Sonya braked and veered the car but it struck Antonio just before he reached the other side of the avenue. Antonio died later that day from injuries sustained in the accident.

Nor do we detect any misuse of discretion in the trial judge's assessment of Sonya's damages:

Plaintiff claims that, as a result of the accident, she has suffered severe emotional trauma which aggravated her diabetic condition and caused a post-traumatic stress disorder. Following the accident, she was admitted to the Glenwood Hospital for diabetic reaction triggered by the accident, and in the summer of 1984, she spent about twenty-one (21) days in Woodland Hills, undergoing treatment and therapy by her psychiatrist, Dr. Gene Moore.

The Court believes that the plaintiff's complaints about the emotional trauma she suffered are real and genuine. Only a callous or stoic person would not be affected by this accident. Although time is a great healer of the mind, the trauma suffered by the plaintiff will long remain with her. The Court further believes that a considerable amount of her trauma was eliminated when the negligent homicide charge was reduced to a misdemeanor. [Sonya was charged with negligent homicide, arrested, booked and later released on bail on the night after the accident. Ultimately, she was permitted to plead nolo contendre to a charge of negligent operation and pay a fine of $150 for this offense on January 19, 1987.] For this type of injury, the Court finds $25,000 to be a fair award.

The trial court concluded that the bus driver, the attendant and Sonya were each guilty of negligent acts and omissions contributing to the accident. The court attributed 70% of the negligence to the school board employees, reduced Sonya's recovery by 30% to correspond with her portion of the fault, and entered judgment in her favor against the school board in the amount of $17,500. The Court of Appeal affirmed the judgment, finding no error of fact and concluding that the trial court's decision was consistent with the court of appeal's previous decision holding that Sonya's cause of action was valid. Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990).

In its previous decision, the court of appeal reversed a trial court ruling by which the lower court had sustained the school board's exception of no cause of action. Clomon v. Monroe City School Board, 490 So.2d 691 (La.App. 2d Cir.1986). The court of appeal held that under the facts alleged in the petition, which were substantially the same as the plaintiff later proved at trial, a cause of action had been stated for negligently inflicted emotional distress damages, because the school board employees had violated a "direct and separate [statutory] duty owed by the board to the motorist to operate the warning signals on the school bus until the child departing the bus reaches a place of safety, which duty is correlative to the duty owed by the motorist to obey these signals." Id. at 694. See La.R.S. 32:80. Further, the court of appeal held that the school board's policy imposing similar requirements on the bus driver and a separate obligation on the attendant to escort the child to a place of safety created a legal duty that "extends to protect not only the departing handicapped child, but, as well, the motorist who might strike the departing child if a breach of the duty of one or more employees of the board causes wholly or partly an accident between the motorist and the child, even though the motorist herself might be partially at fault in causing the accident." Id.

Sonya's application for certiorari by this court was denied. Clomon v. Monroe City School Board, 563 So.2d 886 (La.1990). We granted the school board's application, Clomon v. Monroe City School Board, 563 So.2d 869 (La.1990), to decide whether a plaintiff in Sonya's position should be barred from recovering damages for her negligently inflicted emotional distress for any or all of the following reasons: she was not closely related to the deceased victim of the accident; she sustained only emotional distress damage without immediate physical injuries in the collision; and she was contributorily negligent in causing the accident. These are the only issues presented because the school board's application and argument here are restricted to them.

1. Whether the Bystander Recovery Rule Applies

Civil Code Article 2315, in pertinent part, provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * " The fundamental civil law principle stated by this article has been a basic tenet of our law since 1808. See Art. 2315, La.C.C.Comp.Ed., in 17 West's LSA-C.C. p. 16 (1972). Although it is true that some exceptions have been made to the general principle that a person is liable for all damage caused by his fault, it is clear that in the absence of a statutory provision declaring an exception, or a compelling need for one to preserve the public interest, no such exception should be recognized by the courts.

One exception created by this court to the principle of complete reparation was the rule that a plaintiff may not recover for his emotional distress caused by a defendant's negligent infliction of injury upon a third person--even if the third person was the plaintiff's child or other loved one. Black v. Carrollton R.R. Co., 10 La.Ann. 33 (1855). See, also, Kaufman v. Clark, 141 La. 316, 75 So. 65 (1917); Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458 (1907); Sperier v. Ott, 116 La. 1087, 41 So. 323 (1906). Although it is debatable whether this court ever advanced any compelling policy for the exception or its broad, amorphous nature, the rule proved quite durable and was not overruled until earlier this year by our decision in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990). In the Lejeune case this court held that a wife had a cause of action under Civil Code Article 2315 for her negligently inflicted emotional distress which she sustained upon entering her comatose husband's hospital room and discovering that he had been bitten by rats just prior to her arrival. Acknowledging the formidable problems that judges and juries face in distinguishing fraudulent and idiosyncratic claims from meritorious ones, this court deemed it necessary to impose admittedly "somewhat arbitrary", Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 569 (La.1990), restrictions on such claims in order to establish a "guaranty of merit against fraud" and other abuses. See 3 Harper, James and Gray, The Law of Torts 685 (2d...