Hammond v. Central Lane Communications Center

• Decision Date: 22 August 1991
• Parties: Mary HAMMOND, Petitioner on Review, v. CENTRAL LANE COMMUNICATIONS CENTER; City of Eugene; Lane County Oregon; Oregon State Police; Lane County Sheriff's Department and Various Unnamed Employees of the Above, Respondents on Review. TC 16-87-09193; CA A50155; SC S37277.
• Court: Oregon Supreme Court

Page 593

816 P.2d 593

312 Or. 17

Mary HAMMOND, Petitioner on Review, v. CENTRAL LANE COMMUNICATIONS CENTER; City of Eugene; Lane County Oregon; Oregon State Police; Lane County Sheriff's Department and Various Unnamed Employees of the Above Respondents on Review.

TC 16-87-09193; CA A50155; SC S37277.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 22, 1991.

Decided Aug. 22, 1991.

Ralph A. Bradley, Eugene, argued the cause, for petitioner on review. With him on the petition, was Bradley & Gordon, P.C., Eugene.

John B. Arnold, Eugene, argued the cause, for respondents on review Central Lane Communications Center and City of Eugene. With him on the response, was Harrang, Long, Watkinson, Arnold & Laird, P.C., Eugene.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause, for respondent on review Or. State Police. With him on the response, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

David B. Williams, Asst. County Counsel, Eugene, argued the cause, for respondents on review Lane County and Lane County Sheriff's Dept. With him on the response, was Lane County Office of Legal Counsel, Eugene.

VAN HOOMISSEN, Justice.

This is a tort action for damages based on theories of negligent and reckless infliction of severe emotional distress. Plaintiff alleges that she sustained psychic and emotional injuries as a result of the manner in which defendants responded to a 9-1-1 call that she made concerning her husband and as a result of the manner in which defendants designed the Lane County 9-1-1 emergency telephone system. The trial court granted defendants' motions for summary judgment. ORCP 47. ¹ The Court of Appeals affirmed. Hammond v. Central Lane Communications Center, 101 Or.App. 569, 792 P.2d 440 (1990). Because plaintiff suffered no physical injury from defendants' alleged negligence and because she has not shown that defendants' conduct was anything more than negligent, we also affirm.

We view the record in the light most favorable to plaintiff, the party opposing defendants' summary judgment motions. Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978).

Plaintiff awoke to find her 67-year-old husband, who suffered from congestive heart failure, lying on the kitchen floor. He was not breathing, had no apparent pulse, was cold to the touch, and was bluish in color.

Plaintiff dialed 9-1-1. She spoke to a 9-1-1 operator, who asked her questions about the nature of the emergency. At the operator's request, plaintiff checked to see if her husband was breathing. He was not. The operator asked plaintiff to try to find a pulse. She found none. On the basis of the information provided by plaintiff, the operator concluded that plaintiff's husband was dead from natural causes. The operator told plaintiff that someone would be at her house "in just a couple of minutes." During the time plaintiff waited for help to arrive, her husband made "rasping breathing sounds."

An electronic message, reporting information from plaintiff's call and the 9-1-1 operator's assessment of the nature of the call, was immediately dispatched via computer to the Eugene Fire Department's Dispatch Center and to the Oregon State Police (OSP). ² Because plaintiff's call originated from an unincorporated area of the county and indicated that plaintiff's husband was dead from natural causes, OSP was the agency responsible for responding to the call. Central Lane Communications Center (CLCC) personnel who made follow-up calls to OSP were told that no state trooper was available to respond immediately to a call of a non-emergency nature, that a deputy sheriff would soon be available and, therefore, that a deputy would respond to plaintiff's call. The deputy, who also was advised that this was a "deceased person" call, arrived at plaintiff's house about 45 minutes after plaintiff called 9-1-1 and found plaintiff's husband dead. Between plaintiff's 9-1-1 call and the arrival of the deputy at her house, plaintiff's son-in-law called 9-1-1 to inquire when an ambulance would be arriving. He indicated to the 9-1-1 operator that plaintiff's husband was, in fact, dead.

Plaintiff's complaint first alleges that defendants were negligent in the following particulars: in treating her call as a "deceased person" call; in advertising that, if she called 9-1-1, emergency medical services would be delivered to her home, when, in fact, defendants knew that, because of a defect in the original design of the 9-1-1 system, such services would never have been sent to the unincorporated area where she lived; in failing to provide those services as advertised; in misleading her to believe that those services would be provided "in just a couple of minutes," when defendants knew that those services would not be provided to the unincorporated area where she lived; and in failing to ensure that those services were provided as advertised. Plaintiff's complaint next alleges that defendants' conduct was "extreme and outrageous" and reckless. ³

In granting defendants' motions for summary judgment, the trial court held that plaintiff had no claim against defendants for negligence, because plaintiff was not a "direct victim" of defendants' alleged negligence, and that plaintiff has no claim against defendants for reckless infliction of severe emotional distress, because defendants' handling of plaintiff's call entailed no misconduct that a trier of fact could find was more than negligent. The Court of Appeals affirmed.

Negligent Infliction of Severe Emotional Distress

Plaintiff first contends that the trial court erred in sustaining defendants' motions for summary judgment on her claim for negligent infliction of severe emotional distress.

This court has recognized common law liability for psychic injury alone in three situations. First, where the defendant intended to inflict severe emotional distress. See Patton v. J.C. Penney Co., 301 Or. 117, 122, 719 P.2d 854 (1986) (ordinarily a plaintiff must allege that a defendant intended to inflict severe mental or emotional distress); Brewer v. Erwin, 287 Or. 435, 454-58, 600 P.2d 398 (1979) (evidence sufficient to go to jury on theory that defendant engaged in abusive conduct intended to frighten or distress plaintiff); Turman v. Central Billing Bureau, 279 Or. 443, 445-49, 568 P.2d 1382 (1977) (evidence of extreme and outrageous conduct sufficient). Second, where the defendant intended to do the painful act with knowledge that it will cause grave distress, when the defendant's position in relation to the plaintiff involves some responsibility aside from the tort itself. Hall v. The May Dept. Stores Co., 292 Or. 131, 135-37, 637 P.2d 126 (1981) (evidence sufficient to support verdict for employee against employer under theory of intentional infliction of emotional distress); Brewer v. Erwin, supra, 287 Or. at 457, 600 P.2d 398 (evidence sufficient to go to jury on plaintiff's theory that defendants engaged in abusive conduct deliberately designed to frighten or otherwise distress plaintiff). Third, where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent. See Nearing v. Weaver, 295 Or. 702, 706, 670 P.2d 137 (1983) (recognizing that Oregon law allows recovery of damages for psychic or emotional harm when defendant's conduct infringes some legal right of the plaintiff independent of an ordinary tort claim for negligence);

McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977) (negligent delivery of passport, in violation of a court order, resulting in removal of plaintiff's child). ⁴ However, in Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558-59, 652 P.2d 318 (1982), this court explained:

"This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship, or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently. * * * But we have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest." (Footnotes and citations omitted.)

Further, the court stated that:

"ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person's consequential loss has a legal source besides its foreseeability." 293 Or. at 569, 652 P.2d 318.

See Nearing v. Weaver, supra, 295 Or. at 708, 670 P.2d 137 (no recovery for psychic loss caused by physical injury to another person); see also Heusser v. Jackson County Health Dept., 92 Or.App. 156, 757 P.2d 1363 (1988), rev den. 307 Or. 326, 767 P.2d 902 (1989) (no recovery where plaintiff sustained no impact); Saechao v. Matsakoun, 78 Or.App. 340, 341 n. 1, 348, 717 P.2d 165, rev. dismissed 302 Or. 155, 727 P.2d 126 (1986) (same). ⁵

Plaintiff asserts, however, that she,

"not her husband--chose to use this service. In a contractual sense, [she] accepted the offer of emergency medical services made by the 9-1-1 service. The failure of the 9-1-1 system directly affected her since it was she who contracted for the service, and it was 9-1-1 that promised [her] they would 'have someone there in just a couple of minutes * * *.' "

Thus, she argues, she was the direct victim of defendants' negligence.

In her briefs and oral arguments, plaintiff refers repeatedly to her "oral contract" with defendant. However, this is not a claim for breach of contract. Plaintiff brought this claim in tort based on theories of negligent and reckless infliction of severe emotional distress, and she may not now be heard to argue instead...