Cormican v. Larrabee, 91-0782
| Decision Date | 29 January 1992 |
| Docket Number | No. 91-0782,91-0782 |
| Citation | 491 N.W.2d 130,171 Wis.2d 309 |
| Parties | Rocky L. CORMICAN, Karen L. Cormican, Aetna Life Insurance Company and Dean Care HMO, Plaintiffs-Respondents, v. Bardson T. LARRABEE, Riverview Boat Lines, Inc., and Continental Casualty Company, Defendants-Appellants. d . Oral Argument |
| Court | Wisconsin Court of Appeals |
For the defendants-appellants the cause was submitted on the brief of John F. Jenswold and Josann M. Reynolds of Jenswold, Studt, Hanson, Clark & Kaufmann of Madison. Orally argued by John F. Jenswold.
For the plaintiffs-respondents the cause was submitted on the brief of John Walsh and John C. Mitby of Axley Brynelson of Madison. Orally argued by John Walsh.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
The defendants appeal from a judgment awarding the plaintiff Karen Cormican (Cormican) $260,000 damages from an automobile accident, her husband $15,000 for lost consortium and lost society and companionship, and $2,200 for medical expenses. The defendants are the adverse driver Bardson Larrabee, his employer, and the liability insurance carrier on his truck. The first issue is the recoverability of damages for Cormican's traumatic neurosis, which involves her unfounded obsession after the birth of her child that her medication and treatment for her injuries while she was pregnant caused the child's disabilities. 1 The second issue is whether the special verdict contains overlapping questions regarding damages and results in a partially duplicitous recovery. The last issue is whether Cormican's damages are excessive. We affirm the judgment.
On June 15, 1985, Larrabee's truck rear-ended Cormican's car and pushed it into the vehicle ahead of Cormican's. She sustained the kind of soft tissue neck injury frequently described as a "whip-lash." On the same day she received several diagnostic x-rays and took medication consisting of Robaxisol tablets (a muscle relaxant), Ibuprofen tablets (to treat pain and inflammation) and Valium. On June 30, Cormican learned she was pregnant, and she believed she was pregnant on the day of the accident.
Cormican is a licensed practical nurse. When she learned she was pregnant, she immediately looked up her medications in the Physician's Desk Reference and health care texts. She learned that her medications involved significant risks to, and should not be prescribed for, expectant mothers. The texts did not disclose the particular nature of the risks. She knew that x-rays can affect a fetus.
The day she learned she was pregnant, Cormican began to "obsess" about possible damage to her unborn child. The idea that something was wrong with her baby intruded her thinking. Her depression and anxiety increased, she was overcome by guilt, was unable to sleep, and had episodes of hysterical crying. She unsuccessfully sought advice and consultation from physicians, family and friends.
On March 7, 1986, Cormican's child, Jason, was born. He was apparently normal. A psychiatrist testified that Cormican's obsession waned and began to abate with the birth but did not stop. Her feeling that something was wrong continued.
Beginning in mid-July, Jason had shaking episodes. In mid-September, a pediatric neurologist diagnosed his condition as "seizures." 2 Cormican's obsession became more apparent. Jason was later diagnosed as having an orthopedic problem with one foot. Cormican's obsession, a psychiatrist testified, "came roaring back when he had seizures and other problems." She became "convinced and very concerned the accident, the pills, the x-rays had caused Jason's problems" and she searched for confirmation. She could not find "conclusive evidence that these kind of things did or did not cause" Jason's problems.
A psychiatrist testified that the accident caused Cormican to suffer a traumatic neurosis. The neurosis includes an adjustment disorder, depression, obsessive/compulsive behavior, anxiety disorder, excessive worry, excessive need to seek reassurances, crying episodes, a sleep disorder and a feeling of guilt and blaming herself.
The basic dispute at trial was whether Cormican's traumatic neurosis ended when Jason was born or continued through the date of trial and is permanent; and, if it is permanent, whether damages are recoverable for her neurosis after his birth. Appellants conceded at oral argument that she had a traumatic neurosis, and, subject to the claim that the verdict allows overlapping awards, that she is entitled to damages up to the date of Jason's birth. Permanence appears no longer to be an issue. But whether she may recover any damages arising out of her traumatic neurosis after Jason was born remains an issue.
Defendants moved the court before the trial that no evidence be admitted concerning Jason's condition or Cormican's concerns regarding his disabilities. The motion was based on the undisputed fact that the automobile accident has not been linked to Jason's disabilities and on the claim that the evidence is inflammatory. The trial court denied the motion, and defendants charge that the evidentiary ruling was error.
We review evidentiary rulings for abuse of discretion. Gonzalez v. City of Franklin, 137 Wis.2d 109, 139, 403 N.W.2d 747, 759 (1987). Defendants' major contention is that the trial court committed an error of law when it denied their motion. To that extent, the issue before us is substantive even though put in terms of discretion. Brantner v. Jenson, 121 Wis.2d 658, 660-61, 360 N.W.2d 529, 530-31 (1985).
Standard negligence analysis applies to this case as it does to any negligence case. If a negligent act was committed and that negligence was a substantial factor in causing the plaintiff's harm, the negligent defendant is liable for unforeseeable as well as foreseeable consequences to the plaintiff, unless public policy dictates that liability ought not attach. A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 484-86, 214 N.W.2d 764, 766-67 (1974).
Larrabee's negligence in causing the accident is conceded. The evidence is that the accident was a substantial factor in causing her traumatic neurosis. One aspect of Cormican's neurosis is the obsession that her treatment and medication while pregnant caused Jason's disabilities. Her obsession is therefore a consequence for which Larrabee is liable. Applying standard negligence analysis, we conclude Cormican is entitled to damages for her neurosis, including damages arising out of her obsession, unless public policy requires otherwise.
Liability is the rule and relief for public policy reasons is the exception. "The cases in which a causally negligent tort-feasor has been relieved of liability are infrequent and present unusual and extreme considerations." Stewart v. Wulf, 85 Wis.2d 461, 479, 271 N.W.2d 79, 88 (1978). Our determination is not a matter of imposing liability but deciding whether not to impose it. For example, it is a "determination to not impose liability...." Coffey v. City of Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132, 140 (1976) (quoting Hass v. Chicago & N.W. Ry. Co., 48 Wis.2d 321, 326, 179 N.W.2d 885, 888 (1970)). "This court, has on occasion, determined not to impose liability...." Stewart, 85 Wis.2d at 479, 271 N.W.2d at 88. Recovery "may be denied...." Schlomer v. Perina, 163 Wis.2d 708, 713, 473 N.W.2d 6, 8 (Ct.App.1991), aff'd, 169 Wis.2d 247, 485 N.W.2d 399 (1992).
No public policy outlaws recovery for traumatic neurosis generally. Damages are recoverable for a plaintiff's traumatic neurosis caused by a defendant's negligent act, at least when the neurosis is associated with physical injury. Riehl v. De Quaine, 24 Wis.2d 23, 30, 127 N.W.2d 788, 792 (1964). And recovery is allowed even if the plaintiff is more susceptible to neurosis than would be a normal person. Id.
The question here is whether public policy requires that no liability be imposed on Larrabee for Cormican's particular traumatic neurosis. The question is one of law. Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 240, 55 N.W.2d 29, 35 (1952). Even if a jury concludes that the defendant's negligence was a substantial factor in producing the plaintiff's traumatic neurosis, the trial or appellate court may conclude for public policy reasons that no liability should attach. Howard v. Mt. Sinai Hosp., Inc., 63 Wis.2d 515, 518-19, 217 N.W.2d 383, 385, 219 N.W.2d 576 (1974).
The most frequently cited public policy factors a court will consider when deciding whether liability should not attach to damages caused by a defendant's negligence are: (1) the injury is too remote from the negligence; (2) the injury is wholly out of proportion to the defendant's culpability; (3) in retrospect it appears extraordinary that the negligence would have brought about the harm; (4) allowing recovery places an unreasonable burden on the defendant; (5) allowing recovery is too likely to open the way for fraudulent claims; (6) allowing recovery will enter a field having no sensible or just stopping point. Schuster v. Altenberg, 144 Wis.2d 223, 242-43, 424 N.W.2d 159, 167 (1988). Because defendants assert that each of the six factors applies, we discuss each. 3
1. Cormican's injury is not too remote from Larrabee's negligence. She sustained a traumatic neurosis as a result of Larrabee's negligence. The neurosis is as much an injury as her soft tissue neck injury. The medical testimony is that fifteen days after the accident Cormican developed her neurosis when she learned she was pregnant. Her neurosis includes an obsession. We are not satisfied we should exempt Larrabee from liability on grounds of remoteness.
Howard does not compel a different conclusion. In Howard, a negligence action, plaintiff claimed damages for her physical injury and for her "phobia" that she might develop a cancer from broken...
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Tesar v. Anderson, 2009AP1993.
...Family. ¶ 9 The question becomes whether the claim should nonetheless be dismissed for public policy reasons. 11 In Cormican v. Larrabee, 171 Wis.2d 309, 318, 491 N.W.2d 130 (Ct.App.1992), we said: Liability is the rule and relief for public policy reasons is the exception. “The cases in wh......
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