Gates v. Richardson

Decision Date08 May 1986
Docket NumberNo. 84-21,84-21
Citation719 P.2d 193
PartiesJohnny Lee GATES, Kristina Gates, and Joseph Gates, infants, by their next friend and natural guardian, Stewart L. Gates, Peggy Merryman, and John Merryman, Appellants (Plaintiffs), v. Kelly D. RICHARDSON, Appellee (Defendant).
CourtWyoming Supreme Court

William J. Flynn (argued), Green River, and E. James Burke of Hanes, Gage & Burke, P.C., Cheyenne, for appellants.

Ford T. Bussart (argued), and Lisa A. Botham, Rock Springs, for appellee.

Before THOMAS, C.J., and ROSE, ** ROONEY, *** BROWN and CARDINE, JJ.

CARDINE, Justice.

This case arose from an accident when an automobile being driven by Kelly Richardson collided with a bicycle being ridden by six-year-old Johnny Gates. Although Johnny survived the accident, he is left with massive brain injuries from which he is unlikely to recover. In addition to Johnny's claim for medical expenses, pain and suffering, future lost wages and permanent disability, Johnny's mother, sister and brother sought damages from Richardson for the emotional distress they suffered from observing Johnny's severe injury at the scene of the accident. Johnny's father sought damages for loss of Johnny's future companionship, and his stepfather sought damages for loss of consortium with Johnny's mother stemming from her emotional injuries. The district court dismissed all counts, except Johnny's claim for personal injuries, on grounds that they failed to state claims upon which relief could be granted. We must decide whether the tort of negligent infliction of emotional distress and whether the claims for loss of consortium and companionship are actionable in Wyoming. We affirm in part and reverse in part.


"When considering a motion to dismiss a complaint, pursuant to Rule 12(b)(6), W.R.C.P., on the ground that it fails to state a claim on which relief can be granted, the facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to the plaintiffs." Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733, 734 (1979).

Our statement of facts is drawn directly from the complaint.

On September 2, 1982, Johnny Gates was riding his bicycle in a school zone in Green River, Wyoming. As Johnny crossed the street, he was struck by Kelly Richardson's vehicle, was carried forward seventy-one feet, and knocked to the pavement. Johnny suffered massive brain injury resulting in a traumatic coma and loss of sight and hearing. When his complaint was filed in May of 1983, Johnny was still in a coma.

Johnny's brother Joseph, who was seven years old at the time, witnessed the accident. Johnny's mother, Peggy Merryman, and his thirteen-year-old sister, Kristina, did not actually see the accident, but they arrived moments after it occurred--in time to find Johnny in the street, severely injured and bleeding. Although these three family members were never in the zone of danger, their presence at the accident scene caused them all profound emotional shock, and at least one of them, Johnny's mother, expended $250 for medical services to cope with the shock. Neither Johnny's father, Stewart Gates, nor his stepfather, John Merryman, witnessed the accident or its immediate aftermath. But Mr. Gates and his former wife, Peggy Merryman, incurred over $100,000 in medical expenses as a result of their son's severe injuries. And Mr. Merryman lost the "society, companionship, consortium and services of his wife" because of her emotional distress.


Compensation for emotional distress is not a new concept in Wyoming. We have permitted recovery for emotional harm caused by false imprisonment, Waters v. Brand, Wyo., 497 P.2d 875, 877-878 (1972),

malicious prosecution, Cates v. Eddy, Wyo., 669 P.2d 912, 921 (1983), and work-related stress, Consolidated Freightways v. Drake, Wyo., 678 P.2d 874 (1984); Graves v. Utah Power & Light Company, Wyo., 713 P.2d 187 (1986). We have discussed intentional infliction of emotional distress and have neither accepted nor rejected it as a tort. Spurlock v. Ely, Wyo., 707 P.2d 188, 192 (1985). This is the first case in which an action for damages resulting from negligent infliction of emotional distress has been directly presented to this court

Traditionally a plaintiff could not recover for mental injuries unless they were linked to an actual or threatened physical impact caused by the defendant. W. Keeton, Prosser and Keeton on Torts § 54 at 362-364 (1984). The rule meant that a duty was imposed upon a defendant to avoid negligent impacts and threats of impact upon another, and he had to pay damages for both mental and physical harm if there was a breach of that duty. There was no duty with respect to negligent acts which caused purely mental harm where there was no impact or threat of impact upon someone in the zone of danger.

The "impact" and "zone of danger" rules were held no longer necessary to state a claim for recovery for mental trauma in the state of California when its supreme court, in 1968, decided the case of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316 (1968). The court held that a mother, who saw her infant child run down by a negligent motorist, could recover from the motorist for her emotional harm. The motorist's duty of care extended to the mother even though she was neither physically impacted nor within the zone of danger. In the eighteen years since Dillon, many state courts have accepted the proposition that a defendant's duty of care should extend to at least some plaintiffs who suffer purely mental injuries. 1 Before we can join these courts in

extending a limited duty of care to persons who suffer mental distress, we must balance the interests of the injured parties against the view that a negligent act should have some end to its legal consequences. Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096, 1102 (1976)

There is no magic formula which will tell us whether a defendant's duty should extend beyond the limits of the impact rule.

"The statement that there is or is not a duty begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. * * * '[D]uty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." (Footnote omitted.) W. Keeton, supra, § 54 at 357-358.

Some of the key policy factors to be considered are: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342, 83 A.L.R.3d 1166 (1976).

The first factor, foreseeability, has for many years been urged as the exclusive test of legal duty. A classic formulation of the test was offered in the 1932 English case Donoghue v. Stevenson, 1932 A.C. 562, quoted in W. Keeton, supra, § 54 at 358-359 and n. 20:

" 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be--persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' "

Unfortunately this test is so vague that it has little practical value. Could defendant Richardson reasonably foresee that if he drove negligently he might run down a young boy on a bicycle and cause him severe physical harm? And could he also reasonably foresee that the boy's brother, mother and sister might come upon the scene shortly after the accident and suffer mental shock? Most people would probably agree that this mental shock is foreseeable to some extent.

"[W]hen a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and thus may suffer serious shock." W. Keeton, supra, § 54 at 366.

But whether it is reasonably foreseeable is an entirely different question. The reasonableness qualification permits the courts to limit legal duties for policy reasons "while maintaining the illusion that a duty can be 'found' through a scientific legal test." W. Prosser, Palsgraf Revisited, 52 U.Mich.L.Rev. 1, 19 (1953). Instead of perpetuating the illusion, we prefer to set forth the legal duty and outline the policy principles which persuade us to recognize the legal duty and its limitations.

The second factor, the closeness of the connection between the defendant's act and the plaintiff's injury, is the flip side of the forseeability coin and is equally useless as an analytical tool. Thus we say that the more removed the injury from the defendant's act the less foreseeable it is that mental harm will result. But when we say the harm to the plaintiff is too remote to fall within a legal duty owed by the defendant, we are stating a conclusion, not applying a test.

The third factor, the certainty that an injury was really suffered, is worth pursuing.

The district court held that the negligent infliction of mental distress did not state a claim in Wyoming because it would result in fraudulent claims and "extortionary litigation." In the worker's compensation context, we have recently reaffirmed our view that mental distress is more easily feigned than physical injury. Graves v. Utah Power & Light Company, supra, 713 P.2d 187. But this does not mean that all...

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