Hamilton v. Nestor

• Decision Date: 18 April 2003
• Docket Number: No. S-02-356.,S-02-356.
• Citation: 659 N.W.2d 321,265 Neb. 757
• Parties: Christopher S. HAMILTON, Appellant, v. Wayne NESTOR, Personal Representative of the Estate of DiAnn K. Nestor, deceased, Appellee.
• Court: Nebraska Supreme Court

659 N.W.2d 321

265 Neb. 757

Christopher S. HAMILTON, Appellant, v. Wayne NESTOR, Personal Representative of the Estate of DiAnn K. Nestor, deceased, Appellee.

No. S-02-356.

Supreme Court of Nebraska.

April 18, 2003.

John M. Lefler, Lincoln, for appellant.

Jamse M. Bausch, Tracy A. Oldemeyer, and Pamela K. Epp, of Cline, Williams, Wright, Johnson & Oldfather, P.C., Lincoln, for appellee.

CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

In this action arising from a motor vehicle accident, the district court for Gage County held as a matter of law that Christopher S. Hamilton could not recover on his negligence claim. The court reasoned that Hamilton suffered no physical injury in the accident and therefore could not recover damages for his emotional distress caused by the accident. Hamilton appeals from a denial of his motion for new trial.

FACTS

In Hamilton's operative amended petition filed against Wayne Nestor, the personal representative of the estate of DiAnn K. Nestor (Nestor), Hamilton alleged that on October 21, 1997, he was involved in a motor vehicle collision caused by Nestor's negligence. Both Nestor and her daughter Laura, who was a passenger in her vehicle, sustained fatal injuries. Hamilton alleged that as a proximate result of Nestor's negligence, he suffered "mental and psychological injuries, including posttraumatic stress disorder." He prayed for both general and special damages.

The personal representative moved for summary judgment. At a hearing on the motion, the personal representative offered portions of Hamilton's deposition in which he admitted that he banged his knees on the dashboard during the accident but otherwise suffered no physical injuries. In other portions of the deposition, Hamilton described recurrent nightmares in which he comes upon accident scenes and finds that he or his family members are the victims. These nightmares occur five to six times a week when he is not on medication and one to two times a week when he is medicated. Hamilton also described "flashbacks" that usually occur when he is driving, in which he sees all or part of the accident. Hamilton is generally fearful that he will be involved in another accident and feels guilty that he was unable to prevent the deaths of two people. He testified that he once blacked out while driving near the intersection where the accident occurred. Also received in evidence was the deposition testimony of Dr. Y. Scott Moore. Moore testified that Hamilton suffered posttraumatic stress disorder as a result of the accident.

The district court granted the personal representative's motion for summary judgment on January 10, 2002. In its order, the court found that Hamilton did not suffer any physical injury in the accident. Relying on Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998), and Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393 (1964),disapproved on other grounds, Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994), the court determined that Nebraska law allows recovery for mental suffering and anxiety only in negligence actions in which a physical injury has been sustained. The court further noted that although Nebraska allows a cause of action for negligent infliction of emotional distress, "[t]his action is not one for negligent infliction of emotional distress, but rather [one that] alleges mental or emotional damages as a result of automobile negligence."

Hamilton filed a motion for new trial in which he alleged that the trial court erred in granting the motion for summary judgment. Alternatively, Hamilton alleged that the trial court erred in failing to allow the case to proceed on the theory of negligent infliction of emotional distress or to grant Hamilton leave to amend his petition to specifically allege that theory. In an order overruling the motion, the district court held that Hamilton could not recover on a negligence cause of action because his mental suffering did not arise out of a physical injury and that he could not proceed on a negligent infliction of emotional distress theory as a matter of law because he had no marital or familial relationship with Nestor. Hamilton filed this timely appeal, and we granted his petition to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Hamilton assigns, restated and summarized, that the district court erred in (1) sustaining Nestor's motion for summary judgment on the basis that posttraumatic stress disorder is not compensable under a general motor vehicle negligence claim and (2) denying his motion for new trial, thereby precluding him from proceeding on an alternate claim for negligent infliction of emotional distress.

STANDARD OF REVIEW

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d 813 (2002); Bowley v. W.S.A., Inc., 264 Neb. 6, 645 N.W.2d 512 (2002).

Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Neb.Rev.Stat. § 25-1332 (Cum.Supp.2002); Soukop v. ConAgra, Inc., 264 Neb. 1015, 653 N.W.2d 655 (2002); Governor's Policy Research Office v. KN Energy, 264 Neb. 924, 652 N.W.2d 865 (2002). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002); Pinkard v. Confederation Life Ins. Co., 264 Neb. 312, 647 N.W.2d 85 (2002).

ANALYSIS

CHARACTERIZATION OF THIS ACTION

We disagree with the district court's characterization of this action as "not one for negligent infliction of emotional distress, but rather [one that] alleges mental or emotional damages as a result of automobile negligence." We have stated that an "emotional distress claim is not a cause of action, but, rather, a separate theory of recovery or element of damage." Fackler v. Genetzky, 257 Neb. 130, 139, 595 N.W.2d 884, 891 (1999). This is a civil action for damages based upon allegations of negligent operation of a motor vehicle on a public highway. Hamilton makes no claim that the physical structure of his body was injured in the accident, and he therefore seeks no damages for mental pain and suffering related to a physical injury. Nor is this a case involving a claim for parasitic damages, which are damages occasioned by anxiety specifically due to a reasonable fear of future harm attributable to a physical injury caused by the negligence of another. See Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998). Rather, the injury claimed by Hamilton can be fairly described as "mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms." See Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). This is the only injury for which Hamilton claims damages in this action. Thus, while it is true that the negligence alleged in this case involved the operation of a motor vehicle, the injury which is claimed to have resulted from such negligence is purely an emotional one. This, then, is an action for negligent infliction of emotional distress.

In Consolidated Rail Corporation v. Gottshall, supra, the U.S. Supreme Court was presented with the issue of whether a purely emotional injury was compensable under the Federal Employers' Liability Act, which permits railroad employees to recover for work injuries caused by an employer's negligence. See 45 U.S.C. § 51 (2000). In addressing this issue, the Court acknowledged that while nearly all states have recognized a right to recover for negligent infliction of emotional distress, as defined by the Court in the passage quoted above, the "fundamental differences between emotional and physical injuries" has led to practical limitations upon the common-law right of recovery for reasons of public policy. Consolidated Rail Corporation v. Gottshall, 512 U.S. at 545, 114 S.Ct. 2396. For example, the Court noted that

"[b]ecause the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned ... that recognition of a cause of action for [emotional] injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act."

512 U.S. at 545, 114 S.Ct. 2396, quoting Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). Other policy considerations noted by the Court as influencing limitations upon the right to recover damages for emotional distress include the absence, in comparison to physical injury, of "necessary finite limits on the number of persons who might suffer emotional injury as a result of a given negligent act," and the difficulty of predicting the incidence and severity of emotional injuries which "depend on psychological factors that ordinarily are not apparent to potential tortfeasors." Consolidated Rail Corporation v. Gottshall, 512 U.S. at 545-46, 114 S.Ct. 2396. The Court concluded:

For all of these reasons, courts have realized that recognition of a cause of action for negligent infliction of emotional distress holds out the very real possibility of nearly infinite and unpredictable liability for defendants. Courts therefore have placed substantial

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