Corso v. Merrill

• Decision Date: 20 August 1979
• Docket Number: No. 78-271,78-271
• Citation: 406 A.2d 300,119 N.H. 647
• Parties: Vincent CORSO, Lolita Corso et al. v. Stephen E. MERRILL, Administrator, Estate of Strella Hilton.
• Court: New Hampshire Supreme Court

Page 300

406 A.2d 300

119 N.H. 647

Vincent CORSO, Lolita Corso et al. v. Stephen E. MERRILL, Administrator, Estate of Strella Hilton.

No. 78-271.

Supreme Court of New Hampshire.

Aug. 20, 1979.

James A. Connor, Manchester, and George C. Eliades, Jr., Lowell, Mass., for plaintiffs.

Sulloway, Hollis, Godfrey & Soden, Concord (Ronald C. Anderson, Concord, orally), for defendant.

LAMPRON, Chief Justice.

This interlocutory appeal requires us to examine the question whether parents who perceive through their senses the fact that their child has been seriously injured and immediately observe the child at the accident scene can recover for emotional distress. We have previously denied recovery to parental bystanders. Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968). Nevertheless, recent judicial opinions and legal commentaries have convinced us to review critically the reasons we have previously given for denying recovery. For the reasons stated below we abandon our present rule, sustain plaintiffs' exceptions, and remand this case for trial.

Plaintiffs' writs allege that the defendant, Strella Hilton, was driving her car in a westerly direction on Hampstead Road in Derry on September 27, 1976, when she negligently struck Katherine Corso, age eight, the daughter of Vincent and Lolita Corso. The Corso house was approximately fifty feet from the scene of the accident. Lolita Corso was in her kitchen at the time of the accident and she heard a "terrible thud" outside the house. After hearing this sound, she looked out the kitchen door and saw her daughter lying seriously injured in the street in front of the house. Vincent Corso was also in the kitchen when he heard his wife scream that Katherine had been hit by a car. He immediately ran out the door and observed his daughter lying in the street. As a result of this accident, Katherine has been permanently crippled.

Counts one and two of the original writ seek recovery for the injuries sustained by Katherine and are not in issue in this appeal. Count three of the amended writ seeks recovery for Lolita Corso for negligent infliction of emotional distress incident to her hearing the accident and immediately observing her daughter lying injured at the accident scene. Count four of the amended writ seeks recovery for Vincent Corso for negligent infliction of emotional distress incident to being a percipient witness of the accident; that is, he contemporaneously observed the immediate consequences of defendant's alleged negligent act. Counts three and four were dismissed by the trial court for failing to state a cause of action for which relief can be granted. The plaintiffs seasonably excepted and a reserved case was prepared and transferred to this court by King, J.

In Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968), this court was presented with facts similar to those of the present case. A mother had witnessed an accident in which her six-year-old daughter was crushed to death by a truck. She brought an action for negligent infliction of emotional distress to recover for the physical harm resulting from fright and shock caused when she witnessed the accident. We denied recovery holding that no duty existed from the defendant to the plaintiff because the plaintiff was not in the zone of danger, and that public policy compelled us to construct a legal barrier to deny liability. Id.; Barber v. Pollock, 104 N.H. 379, 187 A.2d 788 (1963); See Phipps v. McCabe, 116 N.H. 475, 362 A.2d 186 (1976); Deem v. Town of Newmarket, 115 N.H. 84, 333 A.2d 446 (1975).

The majority of states allow bystander recovery for emotional distress only when the bystander is within the physical zone of danger from defendant's activity. But see Comment, The Development of Recovery for Negligently Inflicted Mental Distress Arising from Peril or Injury to Another: An Analysis of the American and Australian Approaches, 26 Emory L.J. 647 (1977) (Australia has abandoned the zone of danger approach). See generally Annot., 29 A.L.R.3d 1337 (1970). Nevertheless, there appears to be "(s)ome tendency toward allowing recovery," for those persons who are not within the zone. Dziokonski v. Babineau, --- Mass. ---, ---, 380 N.E.2d 1295, 1300 (1978). At the present time, the highest courts of five states and intermediate courts of appeals in two other states allow recovery in instances such as are alleged in the present case. Dillon v Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); Dziokonski v. Babineau, --- Mass. ---, 380 N.E.2d 1295 (1978); Sinn v. Burd, --- Pa. ---, 404 A.2d 672 (1979); D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.1978); See Prince v. Pittston Co., 63 F.R.D. 28 (S.D.W.Va.1974); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976). Recovery for bystanders not in the zone of danger has also been supported by a substantial number of major textwriters and commentators. 1 J. Dooley, Modern Tort Law, §§ 15.10-15.12 (1977); 2 F. Harper and F. James, The Law of Torts, § 18.4 (1956); W. Prosser, Law of Torts § 54 (4th ed. 1971). See also, Lambert, Tort Liability for Psychic Injuries: Overview and Update, 37 ATLA L.J. 1, 11-16 (1978).

Most courts that permit a cause of action for negligent infliction of emotional distress to bystanders, do so by rejecting the zone of danger approach and instead apply traditional principles of negligence analysis. Dillon v. Legg supra; Leong v. Takasaki supra; Dziokonski v. Babineau supra; Toms v. McConnell supra. See generally Comment, Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U.Chi.L.Rev. 512 (1968) (hereinafter cited as Reappraisal of Nervous Shock ). These courts have avoided imposing undue liability by using a test of foreseeability. We feel compelled to reexamine the issue of bystander recovery for infliction of emotional distress. We must consider whether a simple negligence analysis would better serve the interests of justice than the current zone of danger rule, which automatically bars recovery regardless of the relation of the victim to the plaintiff, the proximity of the plaintiff to the scene of the accident, or the fact that the plaintiff's emotional injury directly results from the shock of seeing or otherwise sensorially perceiving the accident and immediately viewing the accident victim.

The key to applying a traditional negligence approach is the doctrine of foreseeability. Duty and foreseeability are inextricably bound together. "The risk reasonably to be perceived defines the duty to be obeyed." Palsgraf v. Long Island R.R., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928). A person may be liable "only to those who are foreseeably endangered by (his) conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous." 2 F. Harper & F. James, The Law of Torts § 18.2 at 1018 (1956). His duty is "measured by the scope of the risk which negligent conduct foreseeably entails." Id.

The manner in which foreseeability is defined will determine whether a duty exists; to simply conclude that no duty exists, as we have done in the past, "begs the essential question whether the plaintiffs' interests are entitled to legal protection against the defendant's conduct." W. Prosser, Law of Torts § 53 at 325 (4th ed. 1971).

(I)f the question is posed, is it foreseeable that a negligent driver will injure a child, that the child's mother will be nearby, and that the mother will suffer mental distress, the answer must be no in the vast majority of cases. This negative answer is primarily due to the fact that it has been required that the defendant foresee the injury of a precise type of person a child. But if the courts concentrate solely on the plaintiff and defendant while considering the third party only as an instrument or means by which the harm was done, it may then be said that the plaintiff is foreseeable. The question then is whether it is foreseeable that negligence to one person may cause mental distress to another.

Comment, One Step Beyond the Zone of Danger Limitation Upon Recovery for the Negligent Infliction of Mental Distress, 43 Temp.L.Q. 59, 62 (1969) (hereinafter cited as One Step Beyond ).

The broader inquiry of foreseeability is therefore more appropriate in determining whether a duty exists. 1 J. Dooley, Supra § 15.10 at 326. 2 F. Harper and F. James Supra § 18.4 at 1038-39. "(I)t is clear that it is reasonably foreseeable that, if one negligently operates a motor vehicle so as to injure a person, there will be one or more persons sufficiently attached emotionally to the injured person that he or they will be affected." Dziokonski v. Babineau, --- Mass. at ---, 380 N.E.2d at 1302 (1978); Accord, Dillon v. Legg supra; Leong v. Takasaki supra. See generally W. Prosser, Supra § 54 at 334.

Moreover, freedom from mental distress is an interest that is today worthy of legal protection. One commentator has stated:

In our increasingly complex society, the orderly and normal functioning of a man's mind is as critical to his well-being as physical health. Indeed, a sound mind within a disabled body can accomplish much, while a disabled mind in the soundest of bodies is rarely capable of making any substantial contribution to society.

Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Georgetown L.J. 1237, 1237 (1971) (footnotes omitted); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976); See 2 F. Harper and F. James, Supra § 18.4 at 1031; State v. Goodwin, 118 N.H. 862, 868, 395 A.2d 1234, 1237-38 (1978) (a person's health depends upon both a sound body and sound mind). The emotional harm, however, cannot be insignificant. Recovery is not to be permitted for "mere upset, dismay, humiliation, grief and anger."...