James v. Lieb

• Decision Date: 25 October 1985
• Docket Number: No. 84-254,84-254
• Citation: 221 Neb. 47,375 N.W.2d 109
• Parties: , 54 USLW 2252 John Lee JAMES and Edna Deloris James, as Parents and Next Friends of Gregory Duwayne James, and as Individuals, Appellants, v. John Milton LIEB and Watts Trucking Service, Inc., Appellees.
• Court: Nebraska Supreme Court

Page 109

375 N.W.2d 109

221 Neb. 47, 54 USLW 2252

John Lee JAMES and Edna Deloris James, as Parents and Next Friends of Gregory Duwayne James, and as Individuals, Appellants, v. John Milton LIEB and Watts Trucking Service, Inc., Appellees.

No. 84-254.

Supreme Court of Nebraska.

Oct. 25, 1985.

Syllabus by the Court

1. Mental Distress: Negligence: Liability. In a case of bystander recovery for negligent infliction of emotional distress, recovery based on the reasonable foreseeability of the harm is a more logical and just method of determining liability than the "zone of danger" rule.

2. Mental Distress: Negligence: Liability. The factors to be considered in determining liability for negligent infliction of emotional distress are not intended to be fixed guidelines but, rather, are factors to be taken into account by the court in assessing the degree of foreseeability of emotional injury to the plaintiff.

3. Mental Distress: Negligence. In an action for negligent infliction of emotional distress, negligence must be measured against the particular set of facts and circumstances present in each case.

4. Mental Distress: Negligence. In an action for negligent infliction of emotional distress, the relationship between the plaintiff and victim is the most crucial in determining foreseeability.

5. Mental Distress: Negligence: Proof. Relationship within a certain degree of consanguinity is not required to prove a sufficient relationship for recovery in an action for negligent infliction of emotional distress.

6. Mental Distress: Negligence: Proof. A marital or intimate familial relationship will be required for recovery in an action for negligent infliction of emotional distress. Extended family members will usually have a heavy burden proving a sufficiently close bond to allow recovery.

7. Mental Distress: Negligence: Proof. If a plaintiff in a negligent infliction of emotional distress case experiences actual sensory perception of the accident, the requirement of proximity will be satisfied.

8. Mental Distress: Negligence: Liability. The determination of liability sustained in a case of negligent infliction of emotional distress depends on a number of factors, including where, when, and how the injury to the victim entered into the consciousness of the plaintiff.

9. Mental Distress: Negligence. In a case of negligent infliction of emotional distress, the emotional trauma must result from either death or serious injury to the victim.

10. Mental Distress: Negligence. In order to recover in a case of negligent infliction of emotional distress, the plaintiff need not necessarily evidence some concurrent physical injury resulting from the emotional trauma. While concurrent physical injury is highly persuasive, it is not necessary given the current state of medical science and advances in psychology.

David J. Cullan of Cullan, Cullan & Morrison, Omaha, for appellants.

Daniel P. Chesire and Stuart M. Paulson of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, Justice.

This is an appeal in a negligence action from an order of the district court for Douglas County sustaining the defendants' demurrer to plaintiffs' petition for failure to state a cause of action.

The following facts were alleged in the petition. On August 10, 1983, plaintiffs' son, Gregory Duwayne James, and their daughter, Demetria, were riding their bicycles north on 50th Street in Omaha, Nebraska. A garbage truck owned by the defendant Watts Trucking Service, Inc., and driven by its employee, John Milton Lieb, was backing west on Spaulding Street. The truck backed into the intersection of 50th and Spaulding Streets, through a stop sign, and hit and ran over Demetria, killing her. Gregory helplessly watched the entire incident. As a result of witnessing his sister's peril, Gregory became physically ill and suffered, and will continue to suffer, mental anguish and emotional distress.

In ruling on a demurrer we are obligated to accept the plaintiffs' well-pleaded facts, as distinguished from conclusions, as true. Allen v. County of Lancaster, 218 Neb. 163, 352 N.W.2d 883 (1984).

The defendants demurred, contending that since plaintiffs' petition failed to allege that Gregory was within the "zone of danger" or in fear for his own safety, no cause of action for emotional distress had been asserted under Nebraska law. Based upon our prior holding in Fournell v. Usher Pest Control Co., 208 Neb. 684, 305 N.W.2d 605 (1981), the trial court dismissed the petition. To the extent that Fournell is in conflict with this opinion, it is expressly overruled, and we therefore reverse and remand this cause for further proceedings in accordance with this opinion.

In Fournell a young woman and her husband brought suit against a pest control company, alleging negligence concerning a termite inspection of the couple's home. The evidence showed that she had suffered mental and emotional disturbances as a result of discovering termite infestation and damage to her home. The majority in that case held that under Nebraska law, to state a claim for negligent infliction of emotional distress or trauma, a plaintiff must first show that some type of physical injury resulted from the emotional trauma and, secondly, that he or she was within the " 'zone of danger or actually put in fear for his [or her] own safety.' " Fournell, supra at 687, 305 N.W.2d at 607. See Owens v. Childrens Memorial Hospital, Omaha, Nebraska, 347 F.Supp. 663 (D.Neb.1972). The majority found Mrs. Fournell's petition failing in both regards, claiming damages solely for mental and emotional distress, and affirmed the district court's order of summary judgment for the defendant. Two members of this court joined in dissent. In their opinion mental injury alone should have been compensable, but at the very least the facts of the case showed that plaintiff had suffered a bodily injury from the emotional disturbances as required by Restatement (Second) of Torts § 436 A (1965), adopted by the majority.

Fournell concerned potential recovery by an alleged "direct victim" of the defendant's negligence. The issue of first impression presented to us in this case is whether and under what circumstances a bystander may recover for negligent infliction of emotional distress. The term "bystander" throughout this opinion refers to those persons who are not immediately threatened with physical injury nor placed in fear for their own safety by the defendant's negligence.

Under the "zone of danger" rule followed by this court in Fournell, other jurisdictions have allowed bystanders to recover for emotional distress only if they (1) were within a physical "zone of danger," (2) feared for their own safety, and (3) suffered physically manifested mental or physical injuries as a result of this fear. See, Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). However, other "zone of danger" jurisdictions have allowed bystanders to recover damages for "fear for the safety of another," so long as the plaintiff was also at personal risk. See, Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933). The latter view is in accordance with Restatement (Second) of Torts § 436 (1965), which would allow recovery when a family member is within the zone of danger but his or her emotional distress arises from fear for another's safety.

The reasoning behind this exception to the general rule denying recovery for the emotional distress arising from the fear for another is that once the defendant is found to have breached an original duty owing to the plaintiff, he should not be relieved of liability for the resulting unexpected or unusual bodily harm to the plaintiff. The Restatement, supra § 436, comment f.; Prosser and Keeton on the Law of Torts, Limited Duty § 54 (5th ed. 1984).

The "zone of danger" rule in general has been defended as a more rational means of determining liability than the "impact" rule which it replaced and which was abandoned by this court in Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937). The "zone of danger" rule supposedly provided the internal consistency lacking in its precursor. The "impact" rule denied damages for emotional distress unless the plaintiff also suffered a contemporaneous physical impact: an event logically unrelated to interest sought to be protected--fear for one's own safety. See, generally, Annot., 64 A.L.R.2d 100 (1959).

Advocates of the "zone of danger" rule also argue that it provides workable, reasonable limits to the liability of a potential defendant. Stadler v. Cross, 295 N.W.2d 552 (Minn.1980). "Under the zone-of-danger rule the courts and juries can objectively determine whether plaintiffs were within the zone of danger. Furthermore, plaintiffs can be cross-examined regarding whether their fear was for themselves or for another." Stadler, supra at 554. The "zone of danger" rule is currently followed by several jurisdictions. See, generally, Winter, A Tort in Transition: Negligent Infliction of Mental Distress, 70 A.B.A.J. 62 (1984).

However, in 1968 the California Supreme Court became the first jurisdiction to abolish the "zone of danger" rule and allow a bystander to recover for negligently inflicted emotional distress in its now landmark decision of Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968). Since that time, a growing number of jurisdictions have taken another look at this tort and have either adopted or modified the Dillon approach and allowed bystander recovery for negligent infliction of emotional distress. See, Versland v. Caron Transport, 206 Mont. ---, 671 P.2d 583 (1983); Apache Ready Mix Co., Inc. v. Creed, 653 S.W.2d 79 (Tex.App.1983); Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983); Paugh v....