Deem v. Town of Newmarket, 7017
| Decision Date | 28 February 1975 |
| Docket Number | No. 7017,7017 |
| Parties | John DEEM et al. v. TOWN OF NEWMARKET. |
| Court | New Hampshire Supreme Court |
Shaines, Madrigan & McEachern and Sanford Roberts, Portsmouth (Robert A. Shaines, Portsmouth, orally) for plaintiffs.
Devine, Millimet, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for defendant; Calderwood & Ouellette, Dover, filed no brief.
The issue in this case is whether parents who were not present at the scene and were not eyewitnesses to the accident in which their son was killed may recover damages for mental anguish and anxiety caused by the death of their son and in addition damages for the loss of their son's services, society, companionship and of love and affection and the loss of any contributions which would have been made by him to the plaintiffs. We hold that there may not be such recovery.
The plaintiffs each brought an action to recover the damages set forth above. Defendant's motions to dismiss were granted and plaintiffs' exceptions were transferred by Morris, J.
Thomas Deem, son of the plaintiffs, was killed when hit by a truck operated by an employee of the defendant town of Newmarket. Neither parent was present, an eyewitness to the accident, nor in the path of danger from the truck involved. In addition to the actions outlined above there is also pending in Rockingham County a wrongful death action brought by Theresa Deem in her capacity as administratrix of the estate of her son.
This court was among the first to recognize the right of recovery for physical injuries caused by fright negligently inflicted without impact. Chinchiolo v. New England &c. Tailors, 84 N.H. 329, 150 A. 540 (1930). Since that time the court has several times had occasion to consider whether to extend the right of recovery to cases where the fright and shock came not from fear for the plaintiff's own safety but from witnessing an accident in which a child or spouse was killed. See Cote v. Litawa, 96 N.H. 174, 71 A.2d 792 (1950); Barber v. Pollock, 104 N.H. 379, 187 A.2d 788 (1963); Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968). These cases discussed fully the reasons for denial of recovery covery even when the plaintiff was an eye-witness to the accident.
Plaintiffs, however, assert that liability exists on the part of the defendant for negligently causing personal injury based on the premise that the plaintiffs' interest in mental tranquility is entitled to legal protection against a defendant's misconduct. See generally Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237 (1971); Note, 76 W. Va.L.Rev. 178 (1974). We do not doubt this proposition but only question its scope. Jelley v. LaFlame, supra.
In support of their position plaintiffs rely heavily on Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 ...
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Corso v. Merrill
...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 z......
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