Johnson v. State

Citation37 N.Y.2d 378,372 N.Y.S.2d 638,334 N.E.2d 590
Decision Date02 July 1975
Docket NumberNo. 52985,52985
Parties, 334 N.E.2d 590, 77 A.L.R.3d 494 Estelle JOHNSON, as Executrix of Nellie Johnson, Deceased, Claimant, and Fleeter Thorpe, Appellant, v. STATE of New York, Respondent. Claim
CourtNew York Court of Appeals

Cornelius D. Murray and Barry R. Fischer, Albany, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz and Ruth Kessler Toch, Albany, of counsel), for respondent.

BREITEL, Chief Judge.

On claimant Fleeter Thorpe's appeal, the issue is whether the daughter of a patient in a State hospital, falsely advised that the patient, her mother, had died, may recover from the State for emotional harm. She sustained the harm as a direct result of the negligent misinformation provided by the hospital in the course of it advising relatives of the death of a patient. The mother was in fact alive and well.

Claimant and her aunt, Nellie Johnson, since deceased, had filed a claim against the State for funeral expenses incurred, emotional harm and punitive damages. The Court of Claims awarded claimant $7,500 for funeral expenses undertaken on the false information, and for emotional harm. It denied her punitive damages, and dismissed the aunt's claim for insufficiency. The State appealed to the Appellate Division and claimants cross-appealed. The Appellate Division modified, limiting the daughter's award to her pecuniary losses of $1,658.47, and otherwise affirmed as to both claimants. The aunt's estate, unlike the daughter, took no further appeal to this court.

There should be a reversal. The daughter of a hospital patient may recover for emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died. Key to liability, of course, is the hospital's duty, borne or assumed, to advise the proper next of kin of the death of a patient.

Claimant's mother, Emma Johnson, had been a patient in the Hudson River State Hospital since 1960. On August 6, 1970, another patient, also named Emma Johnson, died. Later that day, the hospital sent a telegram addressed to Nellie Johnson of Albany, claimant's aunt and the sister of the living Emma Johnson. The telegram read:


In accordance with the instructions in the telegram, claimant was notified of her mother's death by her aunt. An undertaker was engaged; the body of the deceased Emma Johnson was released by the hospital and taken to Albany that night. A wake was set for August 11, with burial the next day. In the interim claimant incurred expenses in preparing the body for the funeral, and in notifying other relatives of her mother's death.

On the afternoon of the wake, claimant and her aunt went to the funeral home to view the body. After examining the body, both claimant and her aunt remarked that the mother's appearance had changed. Nellie Johnson also expressed doubt that the corpse was that of her sister Emma. Thereafter the doubts built up, and upon returning that evening for the wake, claimant, in a state of extreme distress, examined the corpse more closely and verified that it was not that of her mother. At this point, claimant became 'very, very hysterical', and had to be helped from the funeral chapel.

The hospital was called, and the mistake confirmed. Claimant's mother was alive and well in another wing of the hospital. Later that evening at the hospital, the deputy director, with the authorization of the director, admitted the mistake to claimant and her aunt. Upon the trial it appeared that the hospital had violated its own procedures and with gross carelessness had 'pulled' the wrong patient record.

After this incident, claimant did not work in her employment for more than 11 days. She complained of '(r)ecurrent nightmares, terrifying dreams of death, seeing the coffin * * * difficulty in concentrating, irritability, inability to function at work properly, general tenseness and anxiety.' Her psychiatrist testified that 'She appeared to be somewhat depressed, tremulous. She seemed to be under a considerable amount of pressure. She cried easily when relating events that occurred. I though that she spoke rather rapidly and obviously perspiring.' Both her psychiatrist and that of the State agreed that, as a result of the incident, claimant suffered 'excessive anxiety', that is, anxiety neurosis. Her expert, as indicated, testified that she showed objective manifestations of that condition.

One to whom a duty of care is owed, it has been held, may recover for harm sustain solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations (Battalla v. State of New York, 10 N.Y.2d 237, 238--239, 219 N.Y.S.2d 34, 35, 176 N.E.2d 729; Ferrara v. Galluchio, 5 N.Y.2d 16, 21--22, 176 N.Y.S.2d 996, 999--1000, 152 N.E.2d 249, 252; cf. Restatement, Torts 2d, § 313, subd. (1); see, generally, Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419, 420; Prosser, Torts (4th ed.), § 54, pp. 330--333; 2 Harper and James, Law of Torts, § 18.4, pp. 1032--1034; Torts--Emotional Disturbances, Ann., 64 A.L.R.2d 100, 143, § 11 Et seq.). In the absence of contemporaneous or consequential physical injury, courts have been reluctant to permit recovery for negligently caused psychological trauma, with ensuing emotional harm alone (see Restatement, Torts 2d, § 436A; Prosser, Torts (4th ed.), Op. cit., pp. 328--330, and cases collected; 2 Harper and James, Law of Torts, Op. cit., pp. 1031--1032, and cases collected; Torts--Emotional Disturbances, Ann., 64 A.L.R.2d 100, 115, § 7; cf. Weicker v. Weicker, 22 N.Y.2d 8, 11, 290 N.Y.S.2d 732, 733, 237 N.E.2d 876). The reasons for the more restrictive rule were best summarized by Prosser (Op. cit., p. 329): 'The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking'. Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however, thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences.

There have developed, however, two exceptions. The first is the minority rule permitting recovery for emotional harm resulting from negligent transmission by a telegraph company of a message announcing death (see cases collected in Restatement, Torts 2d, App., § 436A; Prosser, Op. cit., p. 329; but see Western Union Tel. Co. v. Speight, 254 U.S. 17, 18, 41 S.Ct. 11, 65 L.Ed. 104; Curtin v. Western Union Tel. Co., 13 App.Div. 253, 255--256, 42 N.Y.S. 1109, 1110--1111 (majority rule denying recovery). The Federal rule does, however, permit recovery where the psychological trauma results in physical illness, see Kaufman v. Western Union Tel. Co., 5 Cir., 224 F.2d 723, 731, cert. den. 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825).

The second exception permits recovery for emotional harm to a close relative resulting from negligent mishandling of a corpse (see Prosser, Op. cit. pp. 329--330, and cases collected). Recovery in these cases has ostensibly been grounded on a violation of the relative's...

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