Jelley v. Laflame
| Decision Date | 29 February 1968 |
| Docket Number | No. 5630,5630 |
| Citation | 108 N.H. 471,238 A.2d 728 |
| Parties | Edith L. JELLEY v. Richard E. LAFLAME. |
| Court | New Hampshire Supreme Court |
Leonard, Leonard & Prolman, Richard W. Leonard, Nashua, for plaintiff.
Sheehan, Phinney, Bass & Green, Manchester, and Thomas H. Richards, Manchester, for defendant.
This is an action by a mother to recover damages for physical harm resulting from fright and shock caused when she witnessed an accident in which her 6 year old daughter was crushed to death by defendant's truck. The defendant filed a motion to dismiss the action 'on the basis that the special declaration fails to state a cause of action.' Plaintiff's exception to the granting of this motion was reserved and transferred by Grimes, J.
Plaintiff's declaration and her deposition indicate that she was standing on the east side of Route 3 in Merrimack in front of a neighbor's house just south of her own home at the time of the accident. She saw her six year old daughter Terri-Lee, who had alighted from a school bus, standing opposite her home on the west side of this highway. The mother observed Terri start across Route 3 from west to east and, when Terri had reached the middle of the road, saw her struck by defendant's truck, thrown on its fender, then underneath the truck, 'rolling and tossing as the truck was going down; and finally, she flew out from under the truck way up.' It is alleged that Terri was crushed to death under the wheels of the truck.
It is also alleged in plaintiff's declaration that as a result of witnessing the accident and the death of her child she 'was horrified, she became hysterical, upset and depressed and suffered mental anguish; she was forced to seek medical treatment and had to be hospitalized; she was permanently injured thereby.'
In Cote v. Litawa, 96 N.H. 174, 175, 71 A.2d 792, 793, 18 A.L.R.2d 216, this court held that a mother whose infant child was struck and injured by defendant's automobile could not 'recover for physical injuries caused by the fright or shock of learning of such injury to her child immediately after its occurrence, the mother not having witnessed the accident, nor been aware of any danger to her child before its happening, nor being in any position to be struck herself or to fear for her own safety.'
This court, relying on Cote v. Litawa, supra, held in Barber v. Pollock, 104 N.H. 379, 187 A.2d 788, that, in accordance with the great weight of authority, a wife, who, from inside a house 100 feet away, saw the defendant's automobile strike her husband, and upon learning of his death suffered a mental breakdown which caused her to be confined to a hospital could not recover.
Among the reasons given for denying recovery in similar cases are lack of forseeability or of proximate cause; lack of fear by the mother for her own safety; and lack of duty on the defendant or of a right in the plaintiff. Cote v. Litawa, 96 N.H. 174, 177, 71 A.2d 792, 18 A.L.R.2d 216; Waube v. Warrington, 216 Wis. 603, 613, 258 N.W. 497, 98 A.L.R. 394; Resavage v. Davies, 199 Md. 479, 86 A.2d 879; 2 Harper and James, The Law of Torts, s. 18.2 [108 N.H. 473] pp. 1018-1022; Prosser, Law of Torts, s. 55, p. 352 (3rd ed. 1964). However a major consideration in denying recovery has been public policy. This factor was adverted to in Cote v. Litawa, supra, 96 N.H. 177, 71 A.2d 792 and was relied on and discussed in the following cases: Waube v. Warrington, 216 Wis. 603, 613, 258 N.W. 497, 98 A.L.R. 394; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 185, 77 N.W.2d 397; Colla v. Mandella, 1 Wis.2d 594, 598, 599, 85 N.W.2d 345, 64 A.L.R.2d 95; Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 310-315, 29 Cal.Rptr. 33, 379 P.2d 513.
'The answer * * * cannot be reached solely by logic * * * (it) must be reached by balancing the social interests involved in order to ascertain how far defendant's duty and plaintiff's right may justly and expediently be extended.' Waube v. Warrington, 216 Wis. 603, 613, 258 N.W....
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Dziokonski v. Babineau
...554, 249 N.E.2d 419 (1969); Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 (1963); Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). The reasons advanced for not permitting recovery are principal......
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...at the accident scene can recover for emotional distress. We have previously denied recovery to parental bystanders. Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968). Nevertheless, recent judicial opinions and legal commentaries have convinced us to review critically the reasons we have......
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Graves v. Estabrook
...impact test but instead followed the zone of danger rule. Corso v. Merrill, 119 N.H. 647, 650, 406 A.2d 300 (1979) ; Jelley v. Laflame, 108 N.H. 471, 238 A.2d 728 (1968) ; Cote v. Litawa, 96 N.H. 174, 71 A.2d 792 (1950). We followed this rule because we were concerned that "we would expose ......
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D'Ambra v. United States, Civ. A. No. 4619.
...603, 258 N.W. 497 (1935); see also Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952); Barber v. Pollock, supra; Jelley v. LaFlame, 108 N.H. 471, 238 A. 2d 728 (1968); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E. 2d 419 These policy reasons will be examined with the followi......