Jarrett v. Jones

• Citation: 258 S.W.3d 442
• Decision Date: 29 July 2008
• Docket Number: No. SC 88700.,SC 88700.
• Parties: Tommy R. JARRETT and Beverly Jarrett, Appellants, v. Michael B. JONES, Respondent.
• Court: United States State Supreme Court of Missouri

258 S.W.3d 442

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

No. SC 88700.

Supreme Court of Missouri, En Banc.

July 29, 2008.

Jessica L. Johnson, Timothy J. Boone, Columbus, David W. Ransin, Springfield, for Appellants.

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

PATRICIA BRECKENRIDGE, Judge.

Tommy R. and Beverly Jarrett appeal the trial court's grant of summary judgment in favor of Michael B. Jones. Mr. Jarrett sued Mr. Jones for negligently causing a collision between Mr. Jarrett's tractor-trailer and Mr. Jones' car, resulting in the death of Mr. Jones' two-year old daughter. Mr. Jarrett's claim sought damages for minor physical injury and emotional distress after he viewed the body of Mr. Jones' daughter. His wife, Beverly Jarrett, sued for loss of consortium. The trial court granted summary judgment for Mr. Jones on the basis that the Jarretts failed to present facts that would entitle them to recover damages for Mr. Jarrett's emotional distress as a bystander. Because Mr. Jarrett is a direct victim of the automobile accident and not a bystander, the judgment of the trial court is reversed, and the cause is remanded.

Factual and Procedural Background

On June 8, 2004, Tommy Jarrett, a professional truck driver, drove his tractor-trailer eastbound on Interstate 44 in Laclede County. At the same time, Michael Jones drove westbound with his wife and two daughters in the vehicle. It had been raining heavily, but the rain was lessening. At this point, Mr. Jones lost control of his automobile which spun across the median and collided with Mr. Jarrett's truck.

The collision caused Mr. Jarrett's knees to hit the steering wheel and dashboard, twisting his "ankle, knee." Immediately after the collision, Mr. Jarrett talked to a man who ran up to his truck to see if he was injured. He told the man he was all right and to check the other vehicle. Mr. Jarrett then jumped out of his truck and ran to Mr. Jones' car to check on the occupants. He saw Mr. Jones and his wife badly injured and saw the body of Mr. Jones' two-year old daughter, Makayla, who was killed in the collision.¹ He stayed at the side of Mr. Jones' vehicle and the Jones family until the police arrived. As a result of the accident, Mr. Jarrett suffered mental and emotional injuries, including post-traumatic stress disorder and feelings of anxiety, trauma, anguish and stress.

Mr. Jarrett and his wife, Beverly, brought suit against Mr. Jones for negligence in causing the collision. Specifically they alleged that Mr. Jones was driving too fast for the wet road conditions and, therefore, was negligent in failing to operate his vehicle with the required decree of care. Mr. Jarrett alleged that Mr. Jones' negligence caused him injuries, including minor physical injuries, post-traumatic stress disorder, past wage and income loss, past pain and suffering, anxiety, emotional trauma, and stress.² Mr. Jarrett's wife sued for loss of consortium.

Mr. Jones filed a motion for summary judgment, which the trial court granted. Specifically, the trial court found that the Jarretts admitted that the sole cause of Mr. Jarrett's emotional distress was the viewing of Makayla's body after the collision, and not the collision itself, since the Jarretts did not deny that contention in Mr. Jones' statement of uncontroverted material facts. As such, the trial court found that Mr. Jones was entitled to judgment as a matter of law because: (1) Mr. Jarrett was not in the zone of danger when he viewed Makayla's death because he did not fear personal injury to himself at that point in time, and (2) Mr. Jones owed no duty to prevent Mr. Jarrett from viewing Makayla's body because he was injured and unconscious at the time.

The Jarretts raise three points on appeal from summary judgment.³ First, the Jarretts assert that the trial court failed to apply the proper law relating to direct-victim recovery for damages of emotional distress and, instead, incorrectly applied the standard for bystander recovery. Alternatively, the Jarretts' claim that the trial court erred because, even if the standard for bystander recovery were applicable, they presented facts to demonstrate a genuine issue of material fact as to Mr. Jarrett's presence in the zone of danger. The Jarretts further claim that, under the standard for bystander recovery, the trial court erred in failing to consider proof that his emotional distress stemmed not only from his grief over the death of Makayla, but also from fear for his own life and safety.

Standard of Review

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04. Whether summary judgment is proper is purely an issue of law, and appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are the same as those employed by the trial court to determine the propriety of sustaining the motion initially. Id. Because the trial court's judgment is founded on the record submitted and the law, this Court need not defer to the trial court's order granting summary judgment. Id. This Court must review the record in the light most favorable to the Jarretts, the party against whom judgment was entered. Id. "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id.

Recovery of Damages for Emotional Distress in Negligence Cases

The Jarretts first claim that the trial court erred in entering summary judgment in favor of Mr. Jones because they presented facts that would permit them to recover damages for Mr. Jarrett's emotional distress as a direct victim, pursuant to Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983). They contend, therefore, that the trial court erred in applying a zone-of-danger analysis, an analysis used to determine whether a bystander plaintiff may recover damages for negligent infliction of emotional distress. Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d 595 (Mo. banc 1990).

The law applicable to recovering damages for emotional distress arising from negligence claims has developed significantly in the past quarter of a century. Prior to 1983, Missouri defendants were not liable for negligence resulting only in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. Trigg v. The St. Louis, Kansas City & Northern Railway Co., 74 Mo. 147, 1881 WL 4742 (1881); Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566, 568 (Mo.1965). The contemporaneous physical injury requirement was called the "impact rule."

In Bass, this Court abandoned the impact rule and adopted new and less restrictive requirements a plaintiff must establish to recover damages for emotional distress. 646 S.W.2d at 772-73. Bass held that a plaintiff may recover for emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress, and (2) the emotional distress or mental injury is medically diagnosable and is sufficiently severe as to be medically significant. Id. The Court limited its holding to direct victims of a defendant's negligence, expressly declining to discuss the standard to be applied in bystander cases, where the plaintiff claims emotional distress solely from observing injury to a third party caused by defendant's negligence. Id. at 770 n. 3.

The issue of liability for a bystander's emotional distress was addressed seven years later in Asaro. In Asaro, the Court undertook to resolve the question left open in Bass: "May a plaintiff recover for emotional distress resulting solely from observing injury to a third party caused by a defendant's negligence?" 799 S.W.2d at 596. The Court answered affirmatively and expanded liability for emotional distress by recognizing a new cause of action for bystander plaintiffs. 799 S.W.2d at 596. Implicitly finding that bystander claims required a more restrictive test than direct-victim claims, to help ensure the authenticity of claims, the Court limited bystander recovery to a plaintiff within the zone of danger, i.e., "placed in a reasonable fear of physical injury to his or her own person." Id. at 599-600.

In the case at bar, the Jarretts characterize their claim as a direct-victim claim, while Mr. Jones asserts that their cause of action is a bystander claim for negligent infliction of emotional distress. Neither Bass nor Asaro addresses the distinction between a "direct victim" and a "bystander." Bass does describe bystander cases in a footnote as being "where a plaintiff suffers mental or emotional distress upon observing death or injury to a third party caused by a defendant's negligence," but it is not clear whether the Court contemplated a direct participant's claim for emotional distress upon observing a third party's injury. 646 S.W.2d at 770 n. 3. Asaro states that it is addressing the question: "May a plaintiff recover for emotional distress resulting solely from observing injury to a third party caused by a defendant's negligence?" 799 S.W.2d at 596. Neither case expressly identifies the crucial distinction, i.e., whether the plaintiff was directly involved in the accident. Nevertheless, Asaro's inclusion of the element that the plaintiff must have been in the zone of danger would be nonsensical when applied to a direct victim who, by virtue of being a direct victim, is in the zone of danger.

Direct victims are persons directly involved in the accident whose emotional distress is either caused by fear for their own safety or caused by the suffering of another. See Kraszewski v. Baptist Med. Ctr. of Oklahoma, 916 P.2d 241, 246 (Okla. 1996). Bystanders, in...