Jarrett v. Jones, No. 28259 (Mo. App. 8/6/2007)

• Decision Date: 06 August 2007
• Docket Number: No. 28259.,28259.
• Citation: Jarrett v. Jones, No. 28259 (Mo. App. 8/6/2007), No. 28259. (Mo. App. Aug 06, 2007)
• Parties: Tommy R. Jarrett and Beverly Jarrett, Appellants v. Michael B. Jones, Respondent.
• Court: Missouri Court of Appeals

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Tommy R. Jarrett and Beverly Jarrett, Appellants v.Michael B. Jones, Respondent.

No. 28259.

Court of Appeals of Missouri, Southern District.

August 6, 2007.

Appeal from the Circuit Court of Laclede County, Hon. Theodore B. Scott, J.

Timothy J. Boone, for Appellant.

Randy R. Cowherd and Kregg T. Keltner, for Respondent.

Before: Parrish, J. and Rahmeyer, P.J.

OPINION

DANIEL E. SCOTT, Judge.

Plaintiff,¹ a professional trucker from Ohio, was eastbound near Lebanon on Interstate 44.Defendant, driving his family west toward their Stone County home, crossed the grassy median and hit plaintiff's tractor-trailer head on.Uninjured,²plaintiff got out and checked defendant's car.He saw defendant and his wife badly hurt and their young daughter killed, causing him post-traumatic stress disorder.Plaintiff sued defendant for negligent infliction of emotional distress.

Plaintiff was not treated for physical or emotional injury from the impact itself or any pre-impact fear of collision.Plaintiff's diagnosable emotional distress, medical treatment, and lost work time were from viewing the deceased child after the collision.³Thus, his damages cognizable under the Bass⁴ test came from post-accident viewing of injured strangers.

The trial court granted defendant summary judgment since plaintiff, when viewing the deceased child, was not in the zone of danger and did not reasonably fear injury to himself.The court also ruled that defendant, who was unconscious after the accident, had no duty to protect plaintiff from seeing defendant's deceased child.

We review summary judgments de novo, and may affirm on any basis supported by the record.In re Estate of Blodgett,95 S.W.3d 79, 81(Mo. banc 2003).This is true even if the trial court relied on a different theory, or if the court's stated reason was wrong.Sisk v. Union Pacific R. Co.,138 S.W.3d 799, 809(Mo.App.2004).Missouri courts have not faced the precise issue before us.But looking to other states for guidance, we find several reasons to affirm the judgment.As to the trial court's first ground, other courts have treated zone-of-danger plaintiffs who escape injury from the collision itself, then are harmed by seeing injured persons thereafter, as seeking "bystander recovery."Hislop v. Salt River Project Agricultural Improvement and Power District,5 P.3d 267, 269(Ariz. App.2000);Engler v. Illinois Farmers Insurance Co., 706 N.W.2d 764, 768 n.1.(Minn. 2005).Missouri, thus far, has not permitted bystander recovery.Asaro v. Cardinal Glennon Memorial Hospital,799 S.W.2d 595, 599-600(Mo. banc 1990).Carlson v. Illinois Farmers Insurance Co., 520 N.W.2d 534(Minn. App.1994) supports the trial court's alternative "no duty" ground:

While the tortfeasor had a duty to protect both Carlson and her friend from physical harm because they were passengers in his car, he had no duty to protect Carlson from distress arising from the fate of her friend.To hold otherwise would impose on a negligent tortfeasor liability out of proportion to his culpability.

Id. at 537.In the same sense, defendant's duty was to drive so as not to physically harm his family or plaintiff.Defendant's breach of duty not to injure his own daughter is no basis for plaintiff to recover, and defendant had no duty or ability (being unconscious) to protect plaintiff from seeing defendant's deceased child.SeeMarschand v. Norfolk and Western Ry. Co., 876 F. Supp. 1528, 1535-36(N.D. Ind.1995)(emotional distress from witnessing harm to another is not caused by a breach of duty owed to the plaintiff), abrogation on other (ADA) grounds recognized inColeman v. Keebler Co., 997 F. Supp. 1102, 1112(N.D. Ind.1998).Several FELA cases, including one from Missouri, similarly describe a zone-of-danger plaintiff recovering "for emotional injury caused by fear of physical injury to himself ..."(emphasis added).Consolidated Rail Corp. v. Gottshall,512 U.S. 532, 556(1994);Marschand,876 F. Supp. at 1534-35;Butler v. The Burlington Northern,119 S.W.3d 620, 626-27(Mo.App.2003).

A third basis for affirmance, not mentioned by the trial court or parties, is that plaintiff's claims generally can be asserted only by someone closely related to the victim.⁵The Restatement (Second) of Torts Section436(c)'s standard is "immediate family."The new Restatement will allow "a close family member" to recover.⁶The great weight of authority nationwide demands a familial or special relationship between plaintiff and victim.See, e.g.,Milberger v. KBHL, LLC,___ F. Supp. ___, 2007 WL 624370(D. Hawaii2007);Hislop,5 P.3d at 269-72;Thing v. La Chusa,771 P.2d 814, 829 & n.10(Cal.1989);Yovino v. Big Bubba's BBQ, LLC,896 A.2d 161, 163-67(Conn. Super.2006);Smith v. Toney,862 N.E.2d 656, 660-61 & n.2(Ind.2007);Engler,706 N.W.2d at 768-72;Grotts v. Zahner,989 P.2d 415, 416(Nev.1999);Montoya v. Pearson,142 P.3d 11, 13-16(N.M. App.2006);Stamm v. PHH Vehicle Management Services, LLC,822 N.Y.S.2d 240, 242-43(App. Div.2006); and additional cases collected in the Reporters' Note for Restatement (Third)Section 47, Comment e and ALR5th annotation cited in notes 3 and 4, supra.⁷Asaro's failure to discuss family/special relationship does not mean our supreme court meant to omit this requirement.Asaro's facts do not support such a conclusion, since the case involved a mother-child situation.Asaro's tenor is decidedly conservative; the court denied the mother's claim and waxed long on the dangers of broad emotional distress liability and the need for line-drawing to circumscribe such risks.799 S.W.2d at 598-99.We also note (as in Hislop,5 P.3d at 269), the weight of nationwide authority at Asaro's time barring such recovery absent a family relationship.A relationship limitation inherent in Asaro's facts, consistent with its conservative tone, and employed by the Restatement (sections of which Asarocited) and the vast majority of cases then and now, is wholly consistent with Asaro's reasoning and result.We need not decide whether the requisite standard is familial or another close relationship, as plaintiff has pleaded or proven neither.

We affirm the judgment.⁸

Dissenting Opinion by Judge Rahmeyer:

I respectfully dissent from the majority opinion, which affirms a grant of summary judgment in favor of Defendant, because I believe there are disputed material facts.The majority treats this appeal as if it is a pure, abstract, question of law to be decided as a case of first impression; however, that is not the case.If this case proceeds to trial and, if the facts support the conclusions reached by the majority, this Court could then address the primary issue addressed by the majority opinion — whether emotional distress damages may be recovered when there is no familial or another close relationship between a plaintiff and a victim.At this time, such discussions are premature.

The majority opinion makes three broad, sweeping statements of law, all of which, apparently, have not been previously addressed in Missouri and, as such, are issues of first impression.First, the majority holds that a plaintiff in an auto collision, who escapes physical "injury" from the collision itself but is subsequently harmed thereafter by seeing injured persons, is a "bystander."Second, it holds that a driver's only duty is to drive and protect others from physical harm.A driver has no duty to protect others from any distress arising from viewing physical harm and the death of others.Finally, the majority opinion expressly limits Asaro v. Cardinal Glennon Memorial Hosp.,799 S.W.2d 595(Mo. banc 1990), by denying recovery to a plaintiff for emotional distress arising out of an injury to a third person unless plaintiff can establish a "familial or another close relationship" between himself and said third person.All of these pronouncements of law derive from one inconclusive answer to a paragraph in a summary judgment motion.As noted in the majority opinion, Plaintiff was hit head-on by Defendant's car.He claimed in his amended petition:

As a direct and proximate result of the negligent acts and omissions of the Defendant, Plaintiff feared for his own life and safety and sustained the following injuries and damages: injuries, including minor physical injuries and post traumatic stress disorder; past expenses for medical treatment and medications in excess of $1,623.57; past wage and income loss in excess of $45,000; and past pain and suffering, mental anxiety, emotional trauma and anguish, stress, which significantly affected his ability to perform usual daily activities, including returning to work.

(Emphasis added).

Both parties moved for summary judgment.The paragraph in Defendant's motion for summary judgment on which the majority opinion apparently relies on in its affirmation of the motion is paragraph 7.Paragraph 7 of the uncontroverted facts in Defendant's motion for summary judgment stated, "Plaintiff's emotional struggles, grief and feelings of guilt after the collision stemmed from his viewing of [D]efendant's deceased daughter, not from the collision itself[.]"(Emphasis added).Plaintiff filed a motion entitled, "Plaintiffs' Memorandum Contra Defendant's Motion for Summary Judgment/Plaintiff's Motion for Summary Judgment," in which he responded to Defendant's statement of uncontroverted facts, as required by Rule 74.04(c)(2).¹Plaintiff's response to paragraph 7 admitted that Plaintiff"was emotionally scarred after having witnessed a child die" and did not deny any portion of that paragraph.

Defendant now argues, and the majority opinion apparently finds, that Plaintiff's admittance of paragraph 7 means that all of his alleged injuries, and thus his entire cause of action, were caused solely from viewing the deceased daughter.That position is simply not supported by Plaintiff's answer to paragraph 7 or the remaining record.

It is beyond question that summary...