Grimsby v. Samson

• Decision Date: 09 January 1975
• Docket Number: No. 43163,43163
• Citation: 530 P.2d 291,85 Wn.2d 52
• Parties: , 77 A.L.R.3d 436 Arne M. GRIMSBY, Appellant, v. Werner E. SAMSON, M.D., and Ballard Community Hospital, Respondents.
• Court: Washington Supreme Court

Page 52

85 Wn.2d 52

530 P.2d 291, 77 A.L.R.3d 436

Arne M. GRIMSBY, Appellant, v. Werner E. SAMSON, M.D., and Ballard Community Hospital, Respondents.

No. 43163.

Supreme Court of Washington, En Banc.

Jan. 9, 1975.

Daniel F. Sullivan and Associates, Daniel F. Sullivan, Joan Smith Lawrence, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, for respondents.

STAFFORD, Associate Justice.

This is an appeal from the dismissal of a complaint for failure to state a claim.

Appellant Arne M. Grimsby (plaintiff) filed a claim for damages based upon the 'tort of outrage' said to have arisen out of his wife's death. Decedent's physician, Dr. Werner E. Samson, and the Ballard Community Hospital, where decedent met her death, were named as defendants.

Plaintiff alleged he was the husband of the decedent and that a patient-physician relationship existed between Dr. Samson and the deceased. He asserted further that the doctor negligently, recklessly, wantonly and Outrageously breached that relationship by abandoning her and failing to provide her with medical care. Plaintiff pleaded further that as a direct and proximate result thereof he 'was required to witness the terrifying agony and explicit pain and suffering of his wife while she proceeded to die right in front of his eyes . . . thereby proximately Causing severe damage to (plaintiff including) . . . mental anguish and pain and suffering . . . and which has further resulted in physical injury and deterioration in . . . plaintiff, and that . . . plaintiff has been damaged . . . both Emotionally and physically . . .' (Italics ours.)

Concerning the defendant hospital, plaintiff alleged he was the husband of the deceased and that a patient-hospital relationship existed between it and his wife. Similarly, the hospital is alleged to have negligently, recklessly, and wantonly breached its duty to provide required medical care and services to the deceased despite plaintiff's requests therefor. Plaintiff alleges 'that as a direct and proximate result of said Outrageous conduct (he) had inflicted upon him the most severe and damaging Emotional and physical distress and anguish . . .' (Italics ours.)

A separate claim for wrongful death was instituted against both defendants. That action is not before us, however, and we express no opinion thereon.

Defendants moved separately for orders of dismissal contending plaintiff had failed to state a claim for which relief could be granted. In each case the motion was granted and the claim was dismissed with prejudice. Plaintiff appeals.

At the outset, defendants have moved to dismiss the appeal and affirm the trial court's judgment of dismissal with prejudice. They point out that plaintiff failed to file a statement of facts as required by ROA I--34 and ROA I--37. Thus, they assert, the trial court's judgments in favor of defendants must be affirmed without reaching the merits because this court has no statement of facts on which to base review, and it is presumed in such a case that the trial court's judgments were proper in law and in fact. Kataisto v. Low, 73 Wash.2d 341, 438 P.2d 623 (1968) is cited in support.

Our review of the record compels us to deny defendants' motion. Kataisto was concerned with a defendant's motion for Summary judgment made pursuant to CR 56. On the other hand, the instant motions were made pursuant to CR 12(b)(6), based upon defendants' motions for dismissal stemming from an asserted Failure to state a claim for which relief could be granted. Thus, we are here concerned with CR 12(b)(6) rather than CR 56. As such, the compelling reasons for the necessity of a statement of facts set forth in Kataisto are not present in the issues raised by the instant motions and resultant orders.

Although affidavits were apparently filed in connection with defendants' motions to dismiss for failure to state a claim, there is no indication of how or whether they were considered in determining the ultimate order issued by the trial judge. Thus, the order entered will be accepted at face value as one having been granted for failure to state a claim for which relief could be granted. CR 12(b)(6). Consequently, the only question before us, and the only issue actually before the trial judge, is whether it can be said that there is no state of facts which plaintiff could prove entitling him to relief under his claim. Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967). The factual allegations of the complaint must be accepted as true for the purpose of the motion. Hofto v. Blumer, 74 Wash.2d 321, 444 P.2d 657 (1968).

Plaintiff has two basic theories, either of which he contends support his claim for relief. The first is based upon the rationale of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). In Dillon a mother, whose child was struck by defendant's vehicle, was not within the traditional 'zone of danger' at the time of the incident. She did, however, see the car strike the child as it was allegedly being driven by defendant in a negligent manner. The mother suffered a severe emotional disturbance. The California Supreme Court recognized that injury, standing alone, imposes no liability. Nevertheless, it found that a duty existed and recognized the right of the mother (a third party) to recover, apparently based upon a theory that liability to such third person, (I.e., the mother) would exist if a defendant should have foreseen that a mother would be in the vicinity of her child and would be disturbed by an injury to her child. In discussing the subjectt of 'foreseeability' and consequent 'duty' the California Court stressed (1) the mother's close proximity to the scene of the accident; (2) the shock having resulted from a direct emotional impact upon her from the sensory and contemporaneous observance of the accident, as contrasted with learing of it from others after its occurrence; and (3) the close mother-child relationship. The court also limited its holding to the case in which a 'plaintiff suffered a shock which resulted in physical injury . . .' Dillon at page 740, 69 Cal.Rptr. at page 80, 441 P.2d at page 920.

A majority of courts that have recently considered the question have rejected the Dillon rationale. Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972); See also Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). The clear exception seems to be Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973). In Tobin the New York Supreme Court said, 24 N.Y.2d at page 615, 301 N.Y.S.2d at page 558, 249 N.E.2d at page 422:

The impact on a mother of a serious injury to her child . . . is . . . evident. . . . Unlike the factors which have brought about most expanding tort concepts, here there are no new technological, economic, or social developments which have changed social and economic relationships and therefore no impetus for a corresponding legal recognition of such changes. Hence, a radical change in policy is required before one may recognize a cause of action in this case.

(Italics ours.) The Tobin Court continued at page 616, 301 N.Y.S.2d at pae 559, 249 N.E.2d at page 423:

The problem of unlimited liability is suggested by the unforeseeable consequence of extending recovery for harm to others than those directly involved in the accident. If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined. It would extend to older children, fathers, grandparents, relatives, or others In loco parentis, and even to sensitive caretakers, or even any other affected bystanders.

(Italics ours.)

The court then went on to say, predicting the future of Dillon, at page 617, 301 N.Y.S.2d at page 560, 249 N.E.2d at page 423:

Any rule based solely on eyewitnessing the accident could stand only until the first case comes along in which the parent is in the immediate vicinity but did not see the accident. . . . Again, the logical difficulty of excluding the grandparent, the relatives, or others In loco parentis, and even the conscientious and sensitive caretaker, from a right to recover, if in fact the accident had the grave consequences claimed, raises subtle and elusive hazards in devising a sound rule in this field.

(Italics ours.)

As predicted in Tobin, the California courts quickly extended the rationale of Dillon to a parent who had Not witnessed the accident. The year following Dillon, a mother was allowed recovery although She did not actually witness her child's accident. She came upon the scene moments after the accident occurred. Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). Thus, within a short period of time, the element of foreseeability was broadened and extended and with it the nature of the duty owed to third parties. As observed in Tobin, even assuming there are cogent reasons for extending liability in favor of victims of shock resulting from injury to others, there appears to be no rational way to restrict the scope of liability even as attempted by Dillon's three limiting standards. None are of much help if they are expected to serve the purpose of holding a strict rein on liability if the test is to be 'reasonably objective.'

We have reviewed the foregoing cases and feel the New York court's critical analysis of Dillon is well considered. We, too, follow the majority view and reject the Dillon concept.

Having rejected Dillon we turn to appellant's second theory. He argues that while a defendant might not be accountable for mere negligent actions which cause emotional stress, one, who by extreme and Outrageous conduct, Intentionally or Recklessly directed at a third person, causes severe emotional...