Hunsley v. Giard

Citation553 P.2d 1096,87 Wn.2d 424
Decision Date19 August 1976
Docket NumberNo. 43681,43681
PartiesMarie HUNSLEY, Appellant, v. Kenneth GIARD and Nadene Giard, his wife, Respondents.
CourtUnited States State Supreme Court of Washington

Critchlow, Williams, Ryals & Schuster, Rembert Ryals, Richland, for appellant.

Loney, Westland, Raekes, Rettig & Sonderman, Diehl R. Rettig, Kennewick, for respondents.

BRACHTENBACH, Associate Justice.

This case concerns the right to recover for injuries, physical and mental, resulting from the negligent infliction of mental distress. The injuries for which recovery is sought resulted from an invasion of plaintiff's home by the defendants' car, but without immediate physical impact to her and outside of her immediate presence. The trial court entered judgment upon a jury verdict for the defendants. We reverse and order a new trial.

On a March day, the plaintiff was sitting in her living room reading the evening paper when she heard a 'rather explosive sound.' Her husband was in an adjoining room giving a piano lesson to one of his private students. She rushed to the area of the sound and discovered her next-door neighbor, the defendant driver, sitting in her Lincoln Continental in the middle of plaintiff's back porch utility room. The room was a shambles. Two walls had been knocked down, the windows were shattered and many of the items stores in the room were damaged. When plaintiff stepped into the room the floor collapsed, causing her to bruise her legs.

Plaintiff's immediate reaction was concern for her long-time neighbor, the defendant driver. In her words, 'I was quite worried about her because she had had some physical problems. I didn't know whether she had blacked out or had died at the wheel or something had happened to her.'

The plaintiff said she was dismayed very much by the damage to the room and its contents. Shortly thereafter she thought about the tragedy which might have occurred had the car hit the room where her husband was given a piano lesson.

Within an hour after the incident the plaintiff began to experience physical discomfort. 'I began to feel this very strange feeling as if my chest were going to explode and as if there wasn't room in my chest for everything. Even my breasts felt very heavy and my arm was beginning to be numb and the numbness eventually went into my hand--my left arm and hand.' Some years earlier plaintiff had had one lung and certain ribs removed in the aftermath of tuberculosis. She was concerned that she might have snapped what she described as the frail cartilage in the rib section. She felt fatigue for some days.

After experiencing continued pain and increased numbness in her arm, plaintiff called a physician who prescribed bed rest and heat. A week later two electrocardiograms were taken. The doctor who administered these tests did not testify at the trial. Five weeks later she consulted a cardiologist. The electrocardiogram revealed abnormalities which the cardiologist said could be related to a number of different stressful conditions, but he concluded that the heart damage 'was probably related to the severe stress state overloading the heart' which occurred at the time of the incident. It was his diagnosis that plaintiff had suffered heart stress, as opposed to a heart attack, with probable microscopic scarring of the heart muscle. Subsequent electrocardiograms were normal, which the doctor testified to be not at all unusual.

The trial court denied defendants' motion to dismiss and sent the case to the jury. The following instruction was given on the question of liability.

If you find that the sole proximate cause of the stress which the plaintiff claims to have sustained was her fear for the safety of Mrs. Giard and/or her fear for the safety of her husband and/or the damage to her home, then your verdict shall be for the defendants.

However, if you find that a proximate cause of this stress was the noise the plaintiff heard and/or the scene which confronted her when she observed the defendant's car after it collided with her home and/or from the fall the plaintiff sustained and the bruises, if any, resulting therefrom and if you further find that this stress proximately caused injury to the plaintiff, then your verdict shall be for the plaintiff.

The jury returned a verdict for defendants.

Out of fairness to the late Judge Lawless, the trial court judge, we shold acknowledge that the record reflects his complete awareness of the somewhat confused state of the law. He submitted the case to the jury on the theory that the injury when the floor gave way was adequate physical impact, seemingly required by case law.

Liability for negligently causing fright, mental disturbance, shock or emotional distress, resulting in physical injury, without impact to the person, has been a divided, confused and unsettled area of the law. No general agreement has yet been reached on the various issues involved. W. Prosser, Torts § 54 at 327 (4th ed. 1971). Any attempt at a consistent exegesis of the authorities is likely to break down in embarrassed perplexity. Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong, Annot., 64 A.L.R.2d 100, 103 (1959).

The following rules have evolved, nevertheless, as the courts have attempted to come to grips with the problem of defining the boundaries of liability for mental distress injuries.

1. A contemporaneous physical impact was required by the leading English case and a majority of the early American cases before allowing recovery for mental distress. J. Fleming, Law of Torts, p. 149 (4th ed. 1971); See e.g., Spade v. Lynn & Boston R.R., 168 Mass. 285, 47 N.E. 88 (1897).

2. Some jurisdictions followed the impact rule, but strained to find impact, such as our own case finding impact through a shock wave from an explosion. See e.g., Kasey v. Suburban Gas Heat of Kennewick, Inc., 60 Wash.2d 468, 374 P.2d 549 (1962); Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961).

3. Intentional or willful acts, even those involving no physical impact and leading only to mental stress, usually resulted in a cause of action. See e.g., Gadbury v. Bleitz, 133 Wash. 134, 233 P. 299 (1925).

4. Mental distress which accompanied physical harm was often compensated as a parasitic damage. 1 T. Street, Foundations of Legal Liability, p. 470 (1906); See e.g., Redick v. Peterson, 99 Wash. 368, 168 P. 804 (1918).

5. Mental distress to a plaintiff caused by fear for his own safety expressed in our cases as an immediate physical invasion of plaintiff's person or security or a direct possibility thereof, was a ground for recovery in some jurisdictions. See e.g., Murphy v. Tacoma, 60 Wash.2d 603, 374 P.2d 976 (1962).

6. Mental distress resulting from witnessing harm to another led to divided results. See e.g., Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968).

7. Mental distress alone, without accompanying physical injury or physical consequences, or any other independent basis for tort liability, generally led to no recovery. Prosser, Supra, § 54 at 328.

See generally Prosser, Supra § 54; Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193 (1944).

Analysis of the English cases begins with the Privy Council decision in Victorian Railway Comm'rs v. Coultas, 13 App.Cas 222 (1888). There the husband and wife were riding in a buggy which approached a railroad crossing. The gatekeeper lifted the gate despite the imminent passage of a rapidly moving train which narrowly missed the buggy. The plaintiff wife fainted, resulting in physical symptoms of injury. In denying recovery, the court held: (1) that the damages were not a consequence which in the ordinary course of things would flow from the negligence (presumably foreseeability); (2) that the damages were too remote; (3) that there would be great difficulty of proof; (4) that it would open a wide field for imaginary claims; and (5) that there was no English precedent for recovery. The court did not decide whether an actual impact was necessary.

Soon thereafter the remoteness premise was rejected in Bell v. Great Northern Ry. Co. of Ireland, 26 L.R.Ir. 428, 442 (1890). The court reasoned that

as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence cause fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be 'a consequence which, in the ordinary course of things would flow from the' negligence, unless such injury 'accompany such negligence in point of time.'

Next to reject the Coultas reasoning was Dulieu v. White & Sons, 2 K.B. 669 (1901), where the pregnant plaintiff was behind the bar of her husband's pub when the defendant servant drove a pair-horse van thereinto. This event caused plaintiff severe shock and illness and was the cause of the premature birth of her child. The court held that the requirement of physical impact was unreasonable and found the remoteness of damage argument unpersuasive. The court focused rather upon the question of proof of the physical injury as a direct and natural effect of the nervous shock. Subsequent resolution of the pertinent issues in the English cases is discussed in R. Heuston, Salmond on the Law of Torts § 77, at 270--275 (15th ed. 1969); R. Percy, Charlesworth on Negligence §§ 33--41 at 19--27 (5th ed. 1971). The latter summarizes the English current rules thusly:

1. When there is a breach of the duty to take care, the damage may take the form of a shock without a direct physical impact.

2. Reasonable fear of immediate physical injury to the plaintiff himself resulting in a shock is actionable.

3. Reasonable fear...

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