Croft by Croft v. Wicker
| Citation | 737 P.2d 789 |
| Decision Date | 22 May 1987 |
| Docket Number | No. S-1686,S-1686 |
| Parties | Sarah D. CROFT, a Minor Child by Stephen and Gale CROFT, her guardians and next friends, and Stephen and Gale Croft, Petitioners, v. Michael WICKER, Respondent. Stephen CROFT, Petitioner, v. Michael WICKER and D.R. Kimbrell d/b/a Kimbrell's Welding Service, Respondents. |
| Court | Supreme Court of Alaska (US) |
Robert Merle Cowan, Kenai, for petitioners.
Arthur S. Robinson, Robinson & Beiswenger, Soldotna, for respondent, Michael Wicker.
No appearance on behalf of D.R. Kimbrell d/b/a Kimbrell's Welding Service.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
This is a petition for review of an order of the superior court granting Michael Wicker's motion to dismiss those portions of the petitioners' counterclaim and complaint claiming causes of action for both intentional and negligent infliction of emotional distress.
For the reasons that follow, we reverse the judgment of the superior court.
Wicker filed suit for infliction of emotional distress, wrongful discharge, and breach of contract, claiming that Stephen Croft behaved outrageously in terminating Wicker's employment after Wicker allegedly molested the Croft's 14-year old daughter, Sarah.
Sarah, Stephen and Gale Croft thereafter filed a complaint against Wicker alleging damages to them which in part were based on theories of assault and emotional distress. At the same time, Stephen and Gale Croft, in the first action, filed a counterclaim alleging the same damages with regard to themselves which they alleged in their complaint. Wicker filed motions to dismiss those counts of the complaint and the counterclaim which pertained to the parents' damages. The trial court ordered that the two cases be consolidated, and later entered an order granting Wicker's motions to dismiss.
The Crofts' counterclaim and complaint allege as follows: That on or about October 12, 1985, Wicker visited the Crofts' home and took Sarah Croft for a ride on his three-wheeler; that both Stephen and Gale Croft (the parents) were present when Wicker left on the three-wheeler with their daughter Sarah; that the defendant intentionally touched Sarah in a sexual manner while riding behind her on the three-wheeler; that the Crofts were in close proximity when Wicker sexually assaulted Sarah and witnessed their daughter's extreme emotional distress, and consequently suffered emotional distress themselves.
Stephen Croft, who was Wicker's welding supervisor at Kimbrell's Welding Service (Kimbrell), was permitted by Kimbrell to terminate Wicker's employment.
The Crofts urge this court to recognize that the circumstances of this case give rise to liability under the principle of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), adopted by this court in Tommy's Elbow Room v. Kavorkian, 727 P.2d 1038 (Alaska 1986).
In Kavorkian, we recognized a bystander's right to recover damages for negligent infliction of emotional distress caused by injury to another. We adopted the Dillon guidelines for determining whether the risk of harm to the plaintiff was reasonably foreseeable to the defendant, thus creating a duty of due care. These guidelines are:
(1) Whether 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 plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
727 P.2d at 1041, quoting Dillon v. Legg, 441 P.2d at 920.
We further stated:
[W]e join the jurisdictions which had [sic] adopted the Dillon guidelines and agree with the more liberal interpretation of those guidelines. The touchstone of Dillon is not a rigid requirement of sensory and contemporaneous observance of the accident, but rather is the reasonable foreseeability that the plaintiff-witness would suffer emotional harm.
In Kavorkian, an intoxicated driver struck the car in which the plaintiff's daughter was a passenger. The plaintiff and his daughter had attended a meeting together and she had left before him. On his way home, the plaintiff passed the scene of the accident, but did not know his daughter was involved. Upon his arrival home, he found that his daughter had not yet arrived, and he went back to the accident scene. There he saw police and medical technicians attempting to remove his daughter from a car. Id. at 1040.
We recognized that under a strict application of the Dillon guidelines, the plaintiff in Kavorkian could not recover because he had not actually observed the tortious event. Id. at 1041. We concluded, however, that it was not necessary for the plaintiff to have witnessed the tortious event. We found that Id. at 1043.
The Crofts meet the first and third prongs of the Dillon test adopted in Kavorkian: They were located near the scene of the tortious event and they are closely related to the victim. Our focus, therefore, is on the requirement of a direct emotional impact from the sensory and contemporaneous observance of the event. Kavorkian holds that this factor is only a guideline for determining foreseeability of harm to the plaintiffs. We relied on Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 (1985), Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 (1978), Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969) and cases from other jurisdictions which permitted recovery for emotional distress in situations where the Dillon guideline of contemporaneous observation of the tortious event was not met. See Kavorkian, 727 P.2d at 1041-42 and n. 4.
In Ochoa, parents witnessed the neglect of their ill son by the medical personnel of a juvenile hall infirmary which resulted in the son's death. 703 P.2d at 3-4. The California Supreme Court held that the Dillon guidelines did not require emotional distress to be caused by a brief and sudden occurrence viewed contemporaneously by the plaintiff in order to be compensable. Id. at 7.
In Nazaroff, a mother was looking for her three-year old son. She heard a neighbor scream his name and she immediately knew that her son had gotten into her neighbor's pool and was hurt. She arrived on the scene in time to see her missing son pulled from the pool and efforts made to resuscitate him. He died some days later. 145 Cal.Rptr. at 659. The Nazaroff court concluded that there were triable issues of fact as to whether the alleged harm to the mother resulted from an emotional shock caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendant's negligent act causing the injury and death of her son. Id. at 664.
In Archibald a mother came upon her child moments after he had been injured in an explosion. 79 Cal.Rptr. at 723-24. The court observed that the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself, and that therefore the plaintiff had met the contemporaneous observance requirement. Id. at 725.
Kavorkian also cites cases from other states, involving plaintiff bystanders, closely related to victims of negligently inflicted...
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