D'Ambra v. U.S.

• Citation: 338 A.2d 524,114 R.I. 643
• Decision Date: 21 May 1975
• Docket Number: No. 74-108-A,74-108-A
• Parties: Joseph A. D'AMBRA et al. v. UNITED STATES of America. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 524

338 A.2d 524

114 R.I. 643

Joseph A. D'AMBRA et al. v. UNITED STATES of America.

No. 74-108-Appeal.

Supreme Court of Rhode Island.

May 21, 1975.

[114 R.I. 667] Abedon & Visconti, Ltd., Girard R. Visconti, Providence, for plaintiffs.

Lincoln C. Almond, U.S., Atty., Everett C. Sammartino, Asst. U.S. Atty., for defendant.

OPINION

DORIS, Justice.

This case comes to us from the First Circuit Court of Appeals pursuant to Sup.Ct.R. 6 which prescribes a procedure for the certification of questions of law from the Federal Courts to this court. The action was originally brought in Federal District Court of Rhode Island under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1958). Constance C. D'Ambra and her husband Joseph A. D'Ambra sued to recover for physical and emotional injuries suffered by the plaintiff-wife and for losses incurred by the plaintiff-husband, both caused by Mrs. D'Ambra's witnessing her 4-year-old son, Gregory A. D'Ambra, being struck and killed by a United States mail truck.

The factual basis of the case presently before us was settled in Joseph A. D'Ambra v. United States, C.A. No. 4545 (D.R.I., March 17, 1972), where the District Court in an unreported opinion, determined that the driver of the mail truck was negligent, and that both Gregory A. D'Ambra and his mother, a witness to the accident and not in any physical danger, were free of contributory negligence. The case was appealed to the First Circuit Court of Appeals, which affirmed the finding of liability. D'Ambra v. United States, No. 72-1205 (1st Cir. October 24, 1972).

On the basis of the facts found in this earlier action, defendant moved under Fed.R.Civ.P. 12(b)(6) to dismiss the instant case for failure to state a cause of action. The District Court denied defendant's motion, holding that under the laws of Rhode Island, a mother who witnesses her child's death as a result of defendant's negligence, has a cause of action for negligent infliction of emotional distress if her presence at the scene of the accident is foreseeable to defendant.

The defendant has appealed this decision to the First Circuit Court of Appeals, which in turn has certified the following question of law to us:

'May a non-negligent plaintiff mother, who is foreseeably in the vicinity of her minor child but not in the child's zone of danger, recover damages for mental and emotional harm, accompanied by physical symptoms, caused by observing the death of her child resulting exclusively from the negligence of defendant in driving the truck which struck the child, although she suffered no physical impact?'

Even if this question were not one of first impression for this court, the increasing division of opinion among jurisdictions over bystander recovery might well require a reexamination of any position taken previously. As it is, only a few prior Rhode Island cases touch on the problem of a parent's recovery for mental suffering caused by the awareness of injury done to a child.

In McGarr v. National & Prov. Worsted Mills, 24 R.I. 447, 53 A. 320 (1902), this court said that in an action brought by a parent for loss of services of his child and medical expenses incurred in caring for the injuries of the child, the jury was not to consider physical or mental pain sustained by the plaintiff parent by reason of injury to the child. For a variety of reasons this case is of limited precedential significance: the case is an old one, brought before Rhode Island allowed recovery for mental injury; the problem of recovery for such injury does not appear to have been extensively argued, if at all; and the holding in the case may well be limited to the particular kind of action brought.

A second case, Bedard v. Notre Dame Hosp., 89 R.I. 195, 151 A.2d 690 (1959), noted that as a general rule parental recovery may not be had for psychic trauma caused by an accident to a child, but did so in the context of a situation involving an intentional tort which the court was anxious to distinguish from McGarr. The statement of law relevant to this case is mere dicta, and again the precise question presently before this court was never briefed, argued, or directly considered.

The only Rhode Island case to seriously consider the problem of negligent infliction of emotional distress did so not in the context of a bystander problem, but in a situation where the plaintiff herself was in danger of serious physical injury. Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907). There the court noted that a severe shock to the nervous system could be as debilitating as any physical impact, and that this effect could well be a direct result of a defendant's negligence. Given these elements of the classical tort, the court concluded that the oft stated problems of practical administration were not sufficient to bar a cause of action where a person was physically endangered by the acts of the defendant, even though no physical impact ever resulted. In Rhode Island the zone of physical danger has continued to be the high water mark of potential liability for negligent infliction of emotional distress. Only a few jurisdictions have pushed these parameters back further to allow bystander recovery. ¹ Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); D'Amicol v. Alvarez Shipping Co., 31 Conn.Sup. 164, 326 A.2d 129 (1973); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974).

If Rhode Island precedent does not present a bar to the extension of potential liability, it is far from providing a source of encouragement for it. Instead this court must approach the instant problem by an application of tort theory, and in so doing examine the underlying issues of policy.

The scope of potential liability commonly finds theoretical expression in such concepts as duty and proximate cause. These are, however, exceedingly elastic notions which, instead of dictating an answer to whether the plaintiff has stated a cause of action against the defendant, merely reformulate the question. They are, indeed, merely reductions of the multi-faceted mores of the community, easily expressible formuli for the core problem of whether the law will countenance a shifting of the burden of loss. As Professor Prosser has noted:

'* * * the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather that an aid to analysis in itself. * * * But it should be recognized that 'duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' Prosser, Torts § 53 (4th ed. 1971).

Likewise, Justice Andrews, in his famous dissent in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) wrote:

'What we do mean by the word 'proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.' Id. at 352, 162 N.E. at 103.

This court has never definitively committed itself to either of these analytical approaches, see Radigan v. W. J. Halloran Co., 97 R.I. 122, 196 A.2d 160 (1963); nor will it do so here. It is felt, however, that given the nature of the problem, which some courts have viewed as calling for not merely an expansion of old tort concepts but a creation of an entirely new cause of action, ² the notion of a duty of care running from the defendant to the plaintiff is the more functional approach, as it tends to focus attention on the obligation to be imposed upon the defendant rather than on the causal sequence of events. See Prosser, Torts § 42 (4th ed. 1971); Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1 (1953). At a time when the cost burden of negligently caused injuries is still settled by a private agreement or lawsuit, this emphasis on the relationship between the plaintiff and the defendant has a solid foundation not only in our ideas of moral responsibility, but also in the present structure of the administration of justice.

Whether there exists a duty of care running from the defendant to the plaintiff is, in the first instance, a question for the court and not for the jury. Radigan v. W. J. Halloran Co., supra; Mercurio v. Burrillville Racing Ass'n, 95 R.I. 417, 187 A.2d 665 (1963); Palsgraf v. Long Island R.R., supra; see also 2 Restatement (Second) Torts § 453 (1965); Prosser, Torts § 45 (4th ed. 1971); Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543 (1962). A justice of the New Jersey Supreme Court, writing in Morril v. Morril, 104 N.J.L. 557, 142 A. 337 (1928), put this proposition as follows:

'Hence, it becomes imperative before legal liability for conceded damages can be imposed upon a defendant, for the court in the first instance to inquire and determine the character of duty which the law under the facts imposed upon the defendant as the basis of liability; for manifestly it cannot be conceded that the jury from their inner consciousness may evolve in every variety of tort feasance a legal duty as the standard of liability.' Id. at 560-61, 142 A. at 339-40.

Underlying this position is the belief that it is the responsibility of the court to declare what the law is, to consider all the relevant factors, and to decide whether the facts as alleged make out a minimum case for shifting the burden of loss from the plaintiff to the defendant. On the practical side, the multiplicity of factors relevant to a determination of whether the plaintiff has or should have a cause of action, together with the multiple application of such notions as foreseeability in first determining duty and later breach, would all make jury instruction hopelessly complicated and involved. Moreover, jury determination of potential liability, unfettered except by some vague concept...