Guilmette v. Alexander
| Decision Date | 07 October 1969 |
| Docket Number | No. 5,5 |
| Citation | 128 Vt. 116,259 A.2d 12 |
| Parties | Aldona GUILMETTE v. Edwin M. ALEXANDER. |
| Court | Vermont Supreme Court |
Langrock & Sperry, Middlebury, and Marshall H. Eddy, Middlebury, on the brief, for plaintiff.
French & Miller, Rutland, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
Plaintiff's declaration states that on the 23rd day of September, 1963, her daughter, Debra Guilmette, age 5, was returning home on a school bus. The bus stopped on the southwesterly side of U. S. Route #7 across from the Guilmette home and discharged Debra therefrom. At that time the bus was displaying flashing red lights.
The defendant, at the time and place, was operating an automobile. It is alleged that he 'unlawfully and negligently passed the stopped bus at a high rate of speed, struck Debra, causing her to fly through the air, strike the hard surface of the roadway injuring her severely, all in the presence of the plaintiff.' The plaintiff had come out on the front porch of the Guilmette home to greet her daughter and witnessed the accident.
It is also alleged in the declaration that as a direct and proximate cause of witnessing the incident, plaintiff has suffered certain physical illness and injury, along with a sense of fatigue, nervousness, neck and arm discomfort, and periods of marked depression.
Plaintiff seeks to recover damages for pain and suffering including sums expended for medical treatment.
The defendant filed a motion to dismiss the action on the basis that plaintiff, in her declaration, 'has failed to set forth a cause of action upon which relief can be granted.' The motion to dismiss was granted and judgment entered for the defendant to recover his costs. Plaintiff has seasonably appealed to this Court for review.
A complaint which fails to allege facts showing a duty owing from the defendant to the plaintiff does not state a cause of action in negligence. The right to recover for negligence is based upon a breach of duty owing to the plaintiff and does not accrue derivatively. Baldwin v. State of Vermont and Vermont Railways, Inc., 125 Vt. 317, 319, 215 A.2d 492. Thus, negligence can only spring from an unperformed duty. Beaulac v. Robie et al., 92 Vt. 27, 32, 102 A. 88. Foresight of harm lies at the foundation of negligence. Thompson v. Green Mountain Power Corp., 120 Vt. 478, 483, 144 A.2d 786.
Plaintiff first calls attention to the case of Savard v. Coty Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656. In that case this Court allowed recovery to the plaintiff who suffered emotionally as a result of 'fright from a reasonable fear of immediate personal injury.' At page 410, 234 A.2d at page 660 of the opinion this Court stated:
In Thompson v. Green Mountain Power Corp., supra, this Court at page 487 of the opinion rejected the traditional 'impact rule'. This view was later reaffirmed in Savard v. Cody Chevrolet, Inc., supra, 120 Vt. at page 408, 144 A.2d 786 of the opinion. However, in the Savard case, supra, recovery was limited to persons within the zone of danger.
The plaintiff now urges that this Court remove the zone of danger limitation and permit the plaintiff to recover for her mental, emotional and physical suffering which resulted, not from fear for her own personal safety, but solely from fear of her child's safety.
Appellant admits that cases in the United States allowing recovery in this type of a situation are very limited, notwithstanding the fact that in England recovery has been allowed since Hambrook v. Stokes Brothers (1925) 1 KB 141 was decided.
Plaintiff calls our attention to Haight v. McEwen (1964), 43 Misc.2d 582, 251 N.Y.S.2d 839 in which the intermediate appellate court allowed recovery for a mother who witnessed the killing of her son by the defendant's negligently driven automobile, even though the plaintiff was not within the zone of danger, and therefore had no fear for her own safety. Amaya v. Home Ice Fuel and Supply Company (1963), 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 held contrariwise. Later in June, 1968, by a divided court, California repudiated Amaya's zone of danger concept and overruled its holding in the Amaya case, supra. Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.
In February, 1968 the Supreme Court of New Hampshire decided a plaintiff had not stated a cause of action by alleging that she, as a mother, suffered physical harm from fright and shock caused as she witnessed her six year old daughter crushed to death by defendant's truck. In her declaration plaintiff alleged that she was standing in front of her...
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