Graves v. Estabrook
| Decision Date | 03 March 2003 |
| Docket Number | No. 2002–118.,2002–118. |
| Citation | 818 A.2d 1255,149 N.H. 202 |
| Court | New Hampshire Supreme Court |
| Parties | Catrina GRAVES v. Franklin L. ESTABROOK. |
Duddy Law Offices, of Bedford (Roy A. Duddy and Charles V. Moser, on the brief, and Mr. Duddy orally), for the plaintiff.
Desmarais, Ewing & Johnston, PLLC, of Manchester (Fred J. Desmarais, on the brief, and David W. Johnston by brief and orally), for the defendant.
James E. Townsend, of Londonderry, for the New Hampshire Trial Lawyers Association, as amicus curiae.
The plaintiff, Catrina Graves, appeals a ruling by the Superior Court (Hampsey , J.) granting the defendant, Franklin L. Estabrook's, motion to dismiss her complaint for negligent infliction of emotional distress. Estabook argued that because Graves was not related by blood or marriage to the decedent, but was only the decedent's fiancée, she cannot recover for negligent infliction of emotional distress. We reverse and remand.
We rely upon the facts pled by Graves. In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, we assume the truth of all facts alleged by the plaintiff and construe all reasonable inferences in the light most favorable to her. Minuteman, LLC v. Microsoft Corp., 147 N.H. 634, 636, 795 A.2d 833 (2002). If the facts do not constitute a basis for legal relief, we will uphold the granting of the motion to dismiss. Id .
Graves was engaged to Brett A. Ennis and had lived with him for approximately seven years. On September 23, 2000, Ennis was riding his motorcycle while Graves followed immediately behind him in a car. At an intersection, Estabrook's vehicle failed to yield at a stop sign and collided with Ennis. As Graves looked on, Ennis flipped over the hood of Estabrook's car and landed on the pavement. Graves immediately stopped her car and ran to the aid of her fiancée. She saw blood coming from his mouth and significant trauma to his head. She followed the ambulance that transported her fiancée to the hospital, stayed by his side while he was being treated, and attempted to comfort his parents and son. Ennis died the next day. Graves alleges that as a result of witnessing the collision and death of her fiancée, she suffered shock, severe mental pain and emotional distress.
The issue before us is whether a plaintiff who lived with and was engaged to marry the decedent may recover for negligent infliction of emotional distress. We hold that she may recover damages for emotional distress as a result of witnessing the collision.
Many of the first States to recognize bystander liability for negligent infliction of emotional distress limited its scope by applying the "physical impact test," without considering foreseeability. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 546–47, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Under the physical impact test, the plaintiff must have sustained a physical impact, no matter how slight, in order to recover. Id . New Hampshire never adopted the physical impact test but instead followed the zone of danger rule. Corso v. Merrill, 119 N.H. 647, 650, 406 A.2d 300 (1979) ; Jelley v. Laflame, 108 N.H. 471, 238 A.2d 728 (1968) ; Cote v. Litawa, 96 N.H. 174, 71 A.2d 792 (1950). We followed this rule because we were concerned that "we would expose a defendant to liability that extended far beyond his culpability." Corso, 119 N.H. at 653, 406 A.2d 300. That rule permitted recovery only when the bystander was within a physical zone of danger created by the defendant's negligence. See Jelley, 108 N.H. 471, 238 A.2d 728.
In Corso , however, we rejected the zone of danger rule. Corso, 119 N.H. at 658, 406 A.2d 300. Instead, we applied the traditional negligence analysis of foreseeability and concluded that "[a]lthough fear of unlimited liability is a valid concern, we now think that this concern must be weighed against a plaintiff's serious emotional injury that is directly caused by defendant's negligence." Id. at 653, 406 A.2d 300.
We held that "freedom from mental distress is an interest that is today worthy of legal protection" and that in deciding whether a defendant could be held liable, "[t]he key to applying a traditional negligence approach is the doctrine of foreseeability." Id. at 651–52, 406 A.2d 300; see Barnhill v. Davis, 300 N.W.2d 104, 107 (Iowa 1981) ; State v. Eaton, 101 Nev. 705, 710 P.2d 1370, 1375 (1985) ; Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852, 862 n. 11 (1996) ().
We adopted the test first enunciated in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), in which the California Supreme Court set forth three factors for determining whether a defendant should reasonably foresee injury to a bystander:
(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.
Dillon v. Legg, 69 Cal.Rptr. 72, 441 P.2d at 920. Dillon noted that these three factors are not a rigid framework but "contemplate[ ] that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen." Id . at 921.
This case requires us to examine the scope of Dillon 's third factor. The defendant argues that we should continue to follow the California Supreme Court and adopt its subsequent holding in Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582 (1988). There, the court held that unmarried cohabitants are not "closely related" and cannot recover for negligent infliction of emotional distress. Id . at 588. Other courts have adopted the same rule. See Ferretti v. Weber, 513 So.2d 1333 (Fla.Dist.Ct.App.1987) ; Sollars v. City of Albuquerque, 794 F.Supp. 360, 363 (D.N.M.1992) ; Hastie v. Rodriguez, 716 S.W.2d 675, 676 (Tex.App.1986). See generally Annotation, Relationship Between Victim And Plaintiff–Witness As Affecting Right To Recover Under State Law For Negligent Infliction Of Emotional Distress Due To Witnessing Injury To Another Where Bystander Plaintiff Is Not Member Of Victim's Immediate Family, 98 A.L.R.5th 609 (2002) ; Note, It's All Relative: A Graphical Reasoning Model For Liberalizing Recovery For Negligent Infliction Of Emotional Distress Beyond The Immediate Family, 30 Val. U.L.Rev. 913, 917 (1996) [hereinafter cited as Note].
As noted by the New Jersey Supreme Court in Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372, 375 (1994), "the [California Supreme Court] in Elden was reacting to the experience of the California courts with bystander liability under the Dillon standard." After Dillon , California courts had significantly expanded the scope of bystander liability. For instance, the supreme court had held that a plaintiff need not visually perceive the injury to the third party. See Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, 1031 (1977). Other California courts had held that arriving soon after the accident was sufficient to satisfy the first two prongs of Dillon . See, e.g. , Nazaroff v. Super. Ct. In And For Cty. Of Santa Cruz, 80 Cal.App.3d 553, 145 Cal.Rptr. 657, 664 (1978) ; Archibald v. Braverman , 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). The courts had also broadly interpreted the "closely related" factor. See Mobaldi v. Board of Regents of University of Cal., 55 Cal.App.3d 573, 127 Cal.Rptr. 720, 726–27 (1976) ; see also Ledger v. Tippitt, 164 Cal.App.3d 625, 210 Cal.Rptr. 814, 824–28 (1985). Thus, one reason for the holding in Elden was a need to rein in the expansion of bystander liability in California.
There has been no comparable expansion of the scope of bystander liability in New Hampshire. Indeed, in Corso , we emphasized the limits of bystander liability.
Plaintiff's burden of proving causation in fact should not be minimized. The emotional injury must be directly attributable to the emotional impact of the plaintiff's observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim. Therefore, recovery will not be permitted for emotional distress when the plaintiff is merely informed of the matter after the accident or for the grief that may follow from the death of the related accident victim.
Corso, 119 N.H. at 656, 406 A.2d 300.
We subsequently have adhered to the limitations created in Corso . For example, in Nutter v. Frisbie Memorial Hospital, 124 N.H. 791, 474 A.2d 584 (1984), we refused to expand liability to plaintiffs who reached the hospital shortly after their child died. We cautioned that a "rule that permitted recovery ... would create a potential cause of action in every parent who learned, by any reasonable means, of his or her child's negligently inflicted death or injury, and as a result suffered emotional injury manifested by physical symptoms." Id. at 796, 474 A.2d 584. In Wilder v. City of Keene, 131 N.H. 599, 557 A.2d 636 (1989), we refused to expand liability to parents who did not witness the accident but observed their child in extremis at the hospital. We reaffirmed the requirement that plaintiffs be "sufficiently close to the accident scene to experience a sensory perception of the event." Id . at 604, 557 A.2d 636. And, in Jarvis v. Prudential Insurance, 122 N.H. 648, 448 A.2d 407 (1982), where the plaintiff alleged emotional distress caused by the denial of health insurance benefits to her husband, we held the plaintiff's reliance on Corso was " misplaced." Id . at 653, 448 A.2d 407. Our cases, thus, have continued to narrowly construe Corso and, unlike the California Supreme...
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