Gain v. Carroll Mill Co., Inc.

• Decision Date: 08 March 1990
• Docket Number: No. 55437-4,55437-4
• Citation: 787 P.2d 553,114 Wn.2d 254
• Parties: Stewart L. GAIN, Jr., and John F. Gain, Appellants, v. CARROLL MILL COMPANY, INC., a corporation, Richard Babington and Jane Doe Babington, husband and wife, Glenn McGoff and Jane Doe McGoff, husband and wife, Glenn McGoff and Jane Doe McGoff, d/b/a Glenn's Diesel, Respondents.
• Court: Washington Supreme Court

Page 254

114 Wn.2d 254

787 P.2d 553

Stewart L. GAIN, Jr., and John F. Gain, Appellants, v. CARROLL MILL COMPANY, INC., a corporation, Richard Babington and Jane Doe Babington, husband and wife, Glenn McGoff and Jane Doe McGoff, husband and wife, Glenn McGoff and Jane Doe McGoff, d/b/a Glenn's Diesel, Respondents.

No. 55437-4.

Supreme Court of Washington En Banc.

March 8, 1990.

Lehner & Mitchell, Michael A. Lehner, Portland, Or., for appellants.

Bullivant, Houser, Bailey, Pendergrass & Hoffman, R. Daniel Lindahl, Portland, Or., for respondents.

DORE, Justice.

The trial court dismissed a claim of negligent infliction of emotional distress caused by the negligent bodily injury of a family member. We hold the claim was properly dismissed, as the plaintiffs were not physically present at the scene of the accident.

FACTS

This case arose out of an incident on March 2, 1987, when James S. Gain, a trooper for the Washington State Patrol, was killed by a truck owned by respondent Carroll Mill Company, Inc. On the same evening of the accident, during the 11 o'clock news, the appellants, the father and brother of the decedent, allegedly saw film relating to the fatal accident and were able to confirm that James was the victim when they saw his vehicle and identified the license plate number.

Appellants subsequently filed a complaint against respondents alleging "[a]s a result of the death of James S. Gain and the violent and public nature of his death ..." they are entitled to relief for the negligent infliction of emotional distress which was "proximately caused by the negligence of [respondents]." Respondents moved to dismiss, under CR 12(b)(6), on the grounds that appellants were not present at the accident scene, and that they were not placed in physical peril. The respondents' motion incorporated the following stipulation of facts:

1. Plaintiffs are family members of James S. Gain.

2. On or about March 2, 1987, James S. Gain was killed on or near Interstate 5 in an accident allegedly caused by negligence of Defendants.

3. At the time of the accident, Plaintiffs were not present at the place where James S. Gain was killed.

4. Plaintiffs were not placed in physical peril by the alleged negligent actions of Defendants.

Clerk's Papers, at 7-14. The trial judge granted summary judgment. ¹ The trial court dismissed appellants' claim based on a rule established in Cunningham v. Lockard, 48 Wash.App. 38, 736 P.2d 305 (1987), to the effect that no action can lie for mental distress caused by negligent bodily injury of a family member, unless the claimant was present at the time of the accident.

The dissent claims the stipulated facts do not support a cause of action. However, the stipulated facts were not the only facts before the trial court, but were supplemental to the facts in the pleadings and the defendants' trial memorandum.

The dissent tries to ignore the facts in the pleadings by stating the plaintiffs are precluded from relying on their pleadings. This is not true. The stipulated facts were signed by the attorneys, and not the parties to the suit. These stipulated facts were not made on personal knowledge. Only when a summary judgment motion is supported and made on personal knowledge is the adverse party precluded from relying on his pleadings. See CR 56(e).

Furthermore, the moving party, the defendants, supported their summary judgment motion with the "pleadings on file with the court, the attached Memorandum of Law and the Stipulation of Facts." Clerk's Papers, at 6. Defendants' Motion to Dismiss. Plaintiffs' emotional distress was admitted as a fact in the pleadings, conceded to in defendants' trial memorandum and accepted by the judge. The judge agreed with the defendants that even though plaintiffs suffered emotional distress, they do not have a cause of The summary judgment shall be granted. The father and brother claims for emotional distress under the stipulated facts indicates that they were not present at the time of the accident.

                action because they were not present at the time of the accident.   To reach this decision, the judge had to accept the facts in the pleadings as true because there is no allegation of emotional distress in the facts designated as "stipulated facts".   In addition, the briefs and oral argument were predicated on the facts in the pleadings being part of the stipulated facts.   This is manifested by the judge's memorandum opinion in which he concludes
                

Clerk's Papers, at 21. This is undisputed evidence that the trial judge considered the facts in the pleadings as part of the stipulated facts.

The stipulated facts were in addition to the facts in the pleadings and the facts agreed to in defendants' trial memorandum.

ANALYSIS

The tort of negligent infliction of emotional distress was recognized in Washington in Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976). In Hunsley, the plaintiff sought damages for mental distress she suffered when a car crashed into her house while she was sitting in the living room and her husband was in an adjacent room. We reexamined the then general rule of no liability for mental distress where the defendant's actions were negligent and there was no impact to the plaintiff. We decided, instead of adopting arbitrary rules, to test plaintiff's negligence claim against the established concepts of duty, breach, proximate cause, and damage. Hunsley, at 434, 553 P.2d 1096. We held that a defendant had a duty to avoid the negligent infliction of mental distress. Hunsley, at 435, 553 P.2d 1096. We further held that it was not necessary that there be any physical impact or threat of an immediate physical invasion of plaintiff's personal security. Hunsley, at 435, 553 P.2d 1096.

The issue presented here is whether a plaintiff need be physically present at the scene of the accident before he In determining ... whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (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.

                has a claim for mental distress caused by the negligent bodily injury of a family member.   In other words, does a defendant's duty to avoid the negligent infliction of mental distress extend to plaintiffs not present at the scene of the accident?   In Hunsley the plaintiff was present so this issue was not raised.   In a case prior to Hunsley, however, we did discuss the issue presented by plaintiffs in this case.   In Schurk v. Christensen, 80 Wash.2d 652, 497 P.2d 937 (1972), the parents of an allegedly sexually [787 P.2d 556] molested child brought an action for damages resulting from the alleged sexual molestations of their child.   The parents did not observe the molestations and learned about them at a later date from a third party.   We rejected plaintiffs' claim based on the then general rule of no liability for negligent infliction of emotional distress.   Nonetheless, in evaluating the parents claim, we quoted and applied the language of the leading case, Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72, 29 A.L.R.3d 1316 (1968), which had recognized the tort of negligent infliction of mental distress
                

The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone Schurk, 80 Wash.2d at 656, 497 P.2d 937 (quoting Dillon v. Legg, 68 Cal.2d 728, 740-41, 441 P.2d 912, 69 Cal.Rptr. 72, 29 A.L.R.3d 1316 (1968)). After distinguishing the facts before us with those in Dillon, we concluded that even under the rationale of cases allowing recovery for mental distress, plaintiffs' claim was not viable:

distant from the accident will suffer more than a temporary emotional reaction.

In Dillon the mother was near the scene of the accident. She observed her daughter being injured and did not learn the facts from others.

In the instant case, the mother was not near the scene of the molestations; she did not observe these injuries occurring to her daughter, and learned of the occurrences at a later date from a third person. We do not believe the facts of the instant case even come within the guidelines of Dillon to indicate a degree of foreseeability by the defendant parents, sufficient to predicate recovery by Maria Argo's mother for mental anguish and distress.

Schurk, 80 Wash.2d at 656-57, 497 P.2d 937. Based on the facts presented, we held

this is not the case for consideration of a change of this long established rule [of no liability for negligent infliction of mental distress] since it would be of no avail to the plaintiffs.

Schurk, at 657, 497 P.2d 937.

The foreseeability analysis suggested by the Dillon court and applied in Schurk is similar to the type of analysis we adopted in Hunsley. Thus while Schurk did not recognize plaintiffs' claim for negligent infliction of mental distress, it is supportive of the position that plaintiffs must be present at the scene of the...