H.L.O. by L.E.O. v. Hossle

• Decision Date: 19 February 1986
• Docket Number: No. 85-575,85-575
• Citation: 381 N.W.2d 641
• Parties: H.L.O., M.A.O., B.L.O., and R.S.O. by Their Father and Next Friend, L.E.O., Plaintiffs, and L.E.O. Individually and R.O. Individually, Appellants, v. Harold HOSSLE, Appellee. A.S. by His Mother and Next Friend, T.L.S., Plaintiff, and T.L.S. Individually, Appellant, v. Harold HOSSLE, Appellee.
• Court: Iowa Supreme Court

Page 641

381 N.W.2d 641

54 A.L.R.4th 85

H.L.O., M.A.O., B.L.O., and R.S.O. by Their Father and Next Friend, L.E.O., Plaintiffs, and L.E.O. Individually and R.O. Individually, Appellants, v. Harold HOSSLE, Appellee A.S. by His Mother and Next Friend, T.L.S., Plaintiff and T.L.S. Individually, Appellant, v. Harold HOSSLE, Appellee.

No. 85-575.

Supreme Court of Iowa.

Feb. 19, 1986.

Jon H. Johnson of Leonard & Johnson, Sidney, for appellants.

F.J. Kraschel and Martha A. Heinicke of Kraschel Law Firm, Council Bluffs, and Lyle A. Rodenburg, Council Bluffs, for appellee.

Considered en banc.

UHLENHOPP, Justice.

The principal legal issue in this appeal is whether the tort of intentional infliction of extreme emotional distress arises in favor of individuals who were not present at the time of the incidents in question.

Plaintiffs L.E.O. and R.O. are the parents of H.L.O., M.A.O., B.L.O., and R.S.O. At the time of the events in question L.E.O. and R.O. were husband and wife. Subsequently their marriage was dissolved, and L.E.O. thereafter had custody of the children. We will refer to this family by the fictitious name of Oscar. Plaintiff T.L.S. is the mother and custodian of A.S. We will refer to these two by the fictitious name of Smith. A jury could find the following from the evidence.

The Oscar parents rented a house from defendant Harold Hossle next to his home on a farm. Hossle ingratiated himself with the Oscar children, becoming almost a substitute grandfather. Unaware of actual occurrences, the Oscar parents encouraged this relationship. A jury could find that in fact Hossle sexually abused the Oscar children by engaging in acts of fellatio, anal sex, and sadomasochism and by taking nude photographs of them, meanwhile threatening them with harm if they disclosed this conduct. Hossle engaged the Smith child with sexual activity on one occasion.

About two months after these occurrences, postal inspectors and the sheriff came to the Oscar home, showed the parents nude pictures of the children, and told them about Hossle's sexual activity. The parents went to the sheriff's office, where the children gave statements about the activities. Mr. Oscar testified by deposition, "Well, in the first place, I was totally appalled that something like this could happen.... And in the second place I was totally goddamn mad." Mrs. Oscar described her feelings as "very upset and a feeling you can't describe and just a mental thing there." The family saw a psychologist, who recommended further treatment for all the Oscars. At the time the deposition was taken the Smith child was under treatment by a psychiatrist.

The parents and children of the two families sued Hossle in two tort actions, which were consolidated. Hossle settled with the five children by the purchase of annuities to pay each Oscar child $200 per month for life (but for not less than twenty years) plus $10,000 at age twenty-five and again at age thirty, and to pay the Smith child $100 per month for life (but for not less than twenty years) plus $5000 at age 25 and again at age thirty; and also to pay the children's attorneys $40,000. The settlement contained a condition relative to subjecting a child's payments to court orders in case the child was subsequently convicted of felony.

Hossle then moved for summary judgment on the parents' own claims. After hearing, the district court sustained the motion and dismissed those claims. The parents appealed. In their brief the parents state that they are not claiming for loss of consortium, hence the problem of double recovery in connection with that item is not involved. Rather, the parents claim two other items of damage: for (1) "expenses incurred on behalf of their children arising out of the tortious conduct of the defendant," and (2) "intentional infliction of mental distress."

I. Expenses. Rule 8 of the Iowa rules of civil procedure states:

A parent, or the parents, may sue for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.

Parents can recover for medical and related expenses incident to an injury to a minor child. Gookin v. Norris, 261 N.W.2d 692, 693 (Iowa 1978). Certainly the assaults and batteries inflicted on these children, if proved, constituted an "injury" to them. Under Rule 8, a wrong is done to the parents in consequence of the injury to the children. Dunn v. Rose Way, Inc., 333 N.W.2d 830, 832 (Iowa 1983). These parents would thus be entitled to recover their expenses incident to care and treatment of the children in consequence of Hossle's acts, if established.

The district court concluded, however, "[t]hat the adult plaintiffs have neither attempted to, nor alleged by any interpretation of the pleadings, a Rule 8, I.R.C.P. claim on behalf of the children." The parents, on the other hand, contend that their pleadings contain allegations which bring them within Rule 8.

At the outset we note that the parents are named as parties individually in the case. We also note that the prayer of the parents' petition is broad: the parents ask judgment against Hossle for amounts which will fully compensate them for special and general damages, other damages which the Court may deem them entitled to, and exemplary damages.

Turning to the allegations of the petition, counts I through IV relate to the children's claims; count I also alleges the facts as to all counts, and alleges the "plaintiffs' " damages including medical expense. Count V then relates to the parents' claims. It first incorporates the allegations of fact from count I. It next alleges the parents' damages including these: "a. Past doctor and hospital bills;" and "b. Future doctor and hospital bills;".

Under notice pleading, a claim for damages under Rule 8 was in the case. The district court should have overruled the motion for summary judgment as to expenses related to the children's injuries.

We do not consider the question of exemplary damages.

II. Severe emotional distress. The elements of an action for intentional infliction of severe emotional distress are set out in Harsha v. State Savings Bank, 346 N.W.2d 791, 800 (Iowa 1984). The district court held that the record did not develop a fact question on the elements. Without passing on the other elements, we consider the question of whether this tort exists when an injury occurs to a third person but the plaintiff is not present at the time. The parents in this case did not learn about Hossle's alleged sex abuse of the children until approximately two months afterward.

The present position of the American Law Institute is stated in section 46(2)(a) of the Restatement (Second) of Torts (1965): "Where such [outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such...