Johnson v. Ruark Obstetrics and Gynecology Associates, P.A.

Citation327 N.C. 283,395 S.E.2d 85
Decision Date29 August 1990
Docket NumberNo. 177PA88,177PA88
CourtUnited States State Supreme Court of North Carolina
PartiesGlenn W. JOHNSON, Administrator of the Estate of James Wayland Johnson, and Barbara K. Johnson and Glenn W. Johnson v. RUARK OBSTETRICS AND GYNECOLOGY ASSOCIATES, P.A. (Formerly the Ruark Clinic, P.A.), L. Joseph Swaim, Thomas B. Greer, Warner L. Hall and Courtney D. Egerton.

Merriman, Nicholls & Crampton, P.A. by Steven L. Evans, Raleigh, for plaintiffs-appellees.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson and William H. Moss, Raleigh, for defendants-appellants.

Joseph E. Elrod, III, and J. Reed Johnston, Jr., Greensboro, for North Carolina Soc. of Obstetricians and Gynecologists, amicus curiae.

James P. Cooney, III, Charlotte, and Charles V. Tompkins, Jr., Raleigh, for North Carolina Ass'n of Defense Attys., amicus curiae.

MITCHELL, Justice.

We must decide in this case whether the father and mother of a stillborn fetus have individual claims for negligent infliction of emotional distress against the defendants whose alleged negligence caused the stillbirth. For reasons differing from those relied upon by the Court of Appeals, we hold that both of the plaintiffs have stated cognizable claims, and we affirm the holding of the Court of Appeals.

As this case was dismissed prior to trial, the facts set forth herein are taken from the allegations of the complaint, which must be taken as true at this point. See Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). We express no opinion, of course, as to whether the plaintiffs will be able to prove at trial that these allegations are true.

The complaint alleged that the plaintiffs were expectant parents; the defendants were the doctors and their professional association who provided prenatal medical care to the plaintiff Barbara Johnson. Mrs. Johnson learned on 1 March 1983 that she was about ten weeks pregnant. She was examined monthly from March through July, then examined almost weekly from August until the stillbirth in early October. Over this period, Mrs. Johnson was informed several times that her pregnancy was progressing normally, and she continued to experience fetal movement through the evening of 2 October 1983. On 3 October 1983, Mrs. Johnson began experiencing contractions and was admitted to Wake Medical Center at 5:30 p.m. Although the defendant Dr. Egerton had reported that fetal heart tones were present at 9:30 that morning, stethoscopic and ultrasound monitoring conducted after Mrs. Johnson's admission failed to reveal any fetal heart tones. The plaintiffs were notified at approximately 8:00 p.m. that the fetus was dead. Mrs. Johnson's labor continued until the fetus was stillborn at 3:27 a.m. on 4 October 1983.

After the stillbirth, Mrs. Johnson's husband, Glenn Johnson, as administrator of the fetal estate, brought a wrongful death claim against the defendants under N.C.G.S. § 28A-18-2. In the same complaint, the plaintiffs Glenn and Barbara Johnson also brought claims for negligent infliction of emotional distress in their individual capacities as father and mother of the fetus. The central allegation of the plaintiffs' claims was that the defendants were negligent by providing Mrs. Johnson inadequate prenatal care, thereby proximately causing the stillbirth and related injuries. The complaint sought damages for injuries to the individual plaintiffs in the form of costs and expenses, lost wages, and the "past, present and future pain and suffering and emotional distress of enduring the labor, with the knowledge that their unborn child was dead, and the delivery of the dead child."

The defendants answered, denying negligence. The answer also contained a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief could be granted. The defendants subsequently moved for summary judgment, and after argument the trial court dismissed all of the plaintiffs' claims. Although the defendants' last motion was for summary judgment, the trial court considered the matter as a motion to dismiss pursuant to Rule 12(b)(6), or a motion for a judgment on the pleadings pursuant to Rule 12(c). See Burton v. Kenyon, 46 N.C.App. 309, 264 S.E.2d 808 (1980).

The Court of Appeals reversed the trial court's dismissals of the wrongful death claim by Glenn W. Johnson as administrator, the claims for emotional distress by the plaintiff parents as individuals, and the claim of Mrs. Johnson for other injuries she sustained throughout her pregnancy. Johnson v. Ruark Obstetrics, 89 N.C.App. 154, 365 S.E.2d 909 (1988). Regarding the plaintiffs' emotional distress claims, the defendants argued to the Court of Appeals, as they now argue to this Court, that "to maintain an action for the negligent infliction of mental distress [i.e., emotional distress], North Carolina law requires that the mental distress either be caused by physical injury or, in the absence of any impact or physical injury caused by the defendants, that the mental distress must be the cause of physical injury." The defendants also argued, as they do here, that "North Carolina law does not recognize recovery for mental anguish caused by concern for the safety and welfare of another." As to those issues, the Court of Appeals concluded that Mrs. Johnson had alleged two physical injuries. First, she alleged that her diabetic condition was not properly treated by the defendants. Id. at 166, 365 S.E.2d at 916. Second, the Court of Appeals reasoned that the alleged fatal physical injury to the fetus was also an injury to Mrs. Johnson, since the fetus was physically attached to the mother. Id. at 166-67, 365 S.E.2d at 916-17. Regarding Mr. Johnson's claim, the Court of Appeals concluded that his allegations of emotional distress also amounted to allegations of foreseeable physical injury to him, and contained nothing which would bar him from later forecasting or introducing more specific evidence that the defendants' negligence had caused him physical injury. Id. at 167-70, 365 S.E.2d at 917-19. Regarding the issue of allowing recovery for emotional distress caused by concern for another person, the Court of Appeals held that neither of the plaintiffs' claims were too remote to bar recovery as a matter of public policy. Id. at 167, 169-70, 365 S.E.2d at 917-19. We allowed the defendants' petition for discretionary review, which was limited to questions concerning the plaintiffs' claims for negligent infliction of emotional distress.


The tort of negligent infliction of emotional distress apparently has a long and winding history in every state. Many scholarly articles admirably attempt to collect and analyze state and national trends. See, e.g., Comment, Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of Distress, 33 Vill.L.Rev. 781 (1988) (herein "Comment"); Prosser and Keeton on the Law of Torts § 54 (5th ed. 1984); Byrd, Recovery For Mental Anguish In North Carolina, 58 N.C.L.Rev. 435 (1980); Annot. "Relationship Between Victim And Plaintiff-Witness As Affecting Right To Recover Damages In Negligence For Shock Or Mental Anguish At Witnessing Victim's Injury Or Death," 94 A.L.R.3d 486 (1979); Annot. "Right To Recover Damages In Negligence For Fear Of Injury To Another, Or Shock Or Mental Anguish At Witnessing Such Injury," 29 A.L.R.3d 1337 (1970); Annot. "Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong," 64 A.L.R.2d 100 (1959). See also Restatement (Second) of Torts §§ 313, 436-36A (1965), and cases collected therein.

For purposes of our analysis, it will suffice to say that today, many states appear to apply one of three prerequisite "tests" to claims for negligent infliction of emotional distress, or one of several variants on those basic tests. As a prerequisite to a valid claim for negligent infliction of emotional distress, some states require that the act causing the emotional distress be accompanied by some physical impact to the plaintiff. States still retaining this requirement often are referred to as having a "physical impact" requirement. See, e.g., Comment, 33 Vill.L.Rev. at 782-94 (current "physical impact" states are listed at 792 n. 59). Some states, however, have abandoned the physical impact requirement, adopting instead a requirement that the plaintiff must have been placed in imminent danger of physical harm by the defendant's action and must have suffered a subsequent physical manifestation of the emotional distress. See id. at 794-96 & 796 n. 91; Restatement (Second) of Torts §§ 313, 436. These requirements are known as the "zone of danger" and "physical manifestation" requirements. "Notably, this test does not extend [a defendant's] liability to those individuals who are foreseeably psychologically affected, but rather is limited to those who are placed in imminent apprehension of physical harm at the time of the breach." Comment, 33 Vill.L.Rev. at 794 (footnotes omitted). (The Comment, id. at 796 n. 91, lists North Carolina as among the states having both "zone of danger" and "physical manifestation" requirements. As explored and explained in this opinion, that categorization is incorrect.) Some states allow a plaintiff within the "zone of danger" to recover, even though his or her emotional distress was caused by concern for the safety of another person, instead of by concern for personal safety. See id. at 799. Other states retain the "zone of danger" requirement, but do not require any physical manifestation of the emotional distress. See id. at 796-98 & 798 n. 92, 802 n. 119.

In cases involving emotional distress arising from the plaintiff's concern for another person, several states have abandoned the "zone of danger" requirement, adopting various versions of what is often called a ...

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