Keck v. Jackson
| Citation | 593 P.2d 668,122 Ariz. 114 |
| Decision Date | 05 April 1979 |
| Docket Number | No. 13740-PR,13740-PR |
| Parties | Dorothy Ann KECK, Appellant, v. Douglas C. JACKSON and Martha F. Jackson, his wife, Appellees. |
| Court | Supreme Court of Arizona |
Napier & Jones by George Zelma, Phoenix, for appellant.
Robbins, Green, O'Grady & Abbuhl by Philip A. Robbins and Timothy C. Gerking, Phoenix, for appellees.
This case is before us on a petition for review of the decision of the Court of Appeals, Keck v. Jackson, 122 Ariz. 117, 593 P.2d 671 (1978) (filed March 9, 1978), which reversed an order of the Superior Court dismissing Count One of appellant's complaint. 17A A.R.S. Rules of the Supreme Court, rule 47(b); A.R.S. § 12-120.24. The judge of the Superior Court, in her order to dismiss, correctly noted that no cause of action exists in Arizona for negligent infliction of emotional distress.
Plaintiff/appellant, Dorothy Keck, and her mother, Beatrice Gillespie, had stopped their car in the emergency parking lane of Interstate 40 near Flagstaff, Arizona, in order to repair a flat tire. The parked vehicle, with both the plaintiff and her mother inside, was hit by a car driven by defendant Martha F. Jackson. The plaintiff received serious physical injuries from the resulting impact, while the plaintiff's mother received fatal injuries. Mrs. Gillespie died three months later after continuous hospitalization.
For the purpose of this appeal we must accept as true all pertinent facts alleged in the complaint. Lakin Cattle Co. v. Engelthaler, 101 Ariz. 282, 419 P.2d 66 (1966). In her complaint the plaintiff alleged that the defendant, while under the influence of alcohol, negligently operated her vehicle so as to cause it to collide with the Keck vehicle. She further alleged that she suffered severe emotional and physical distress from witnessing her mother's injuries and suffering, both at the accident and during the prolonged hospitalization and intensive care required as a result of the accident, as well as from her mother's death.
To constitute actionable negligence there must be a duty owed to the plaintiff, a breach thereof, and an injury which is proximately caused by such breach. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977). The traditional view usually focused on the absence of one of these factors as a basis for denying recovery for negligent infliction of emotional distress. For example, injuries suffered by the plaintiff "bystander" have been held too remote from the defendant's negligent act. E. g., Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847 (1939). The lack of a duty on the part of the defendant to exercise due care to avoid causing the mental or emotional disturbance has also been cited. E. g., Lessard v. Tarca, 20 Conn.Supp. 295, 133 A.2d 625 (Super.Ct.1957). On the other hand, later cases have emphasized the unlimited and unduly burdensome liability placed on a defendant, the problems of fraudulent claims, and the difficulty of circumscribing the area of liability. E. g., Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969).
In recent years, however, there has been a departure from the traditional view, and, under certain circumstances, damages for an emotional disturbance caused by witnessing peril or harm to another have been allowed. The case law in this field, however, is in a state of confusion and no general agreement has yet been reached. Some jurisdictions allow recovery of damages only when the plaintiff has sustained a contemporaneous physical impact or injury. Smith v. Rodene, 69 Wash.2d 482, 418 P.2d 741 (1966), Modified on other grounds 423 P.2d 934 (1967). This has been termed the impact theory. Other jurisdictions have extended the right to recover damages when the defendant's negligence has threatened the plaintiff with harm, thus placing him within the zone of danger. E. g., Towns v. Anderson, 579 P.2d 1163 (Colo.1978); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972). Still other jurisdictions have held that damages for fear, fright, or shock at the harm or peril of a third person may be recovered when accompanied by physical symptoms, despite the absence of physical damages to the plaintiff himself. D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975).
We have analyzed the holdings in other jurisdictions as well as the following statement from the Restatement (Second) of Torts § 313 (1965):
Emotional Distress Unintended
(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and
(b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.
(2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.
It is to be noted that, absent case law to the contrary, this Court...
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