Larsen v. Banner Health System, 02-252.

• Decision Date: 23 December 2003
• Docket Number: No. 02-252.,02-252.
• Citation: 81 P.3d 196,2003 WY 167
• Parties: Shirley M. LARSEN and Polly M. Leyva, Appellants (Plaintiffs), v. BANNER HEALTH SYSTEM, an Arizona Corporation, formerly known as Lutheran Hospitals and Homes Society of America, Appellee (Defendant).
• Court: Wyoming Supreme Court

81 P.3d 196

2003 WY 167

Shirley M. LARSEN and Polly M. Leyva, Appellants (Plaintiffs), v. BANNER HEALTH SYSTEM, an Arizona Corporation, formerly known as Lutheran Hospitals and Homes Society of America, Appellee (Defendant).

No. 02-252.

Supreme Court of Wyoming.

December 23, 2003.

Representing Appellants: John H. Robinson of Jamieson & Robinson, LLC, Casper, WY; and Timothy W. Miller of Reeves & Miller, Casper, WY. Argument by Messrs. Robinson and Miller.

Representing Appellee: Robert M. Shively and Amy M. Taheri, Casper, WY; and Jeffrey J. Campbell of Campbell, Yost, Hergenroether, Clare & Norell, P.C., Phoenix, AZ. Argument by Mr. Shively.

Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PRICE, D.J.

LEHMAN, Justice.

[¶ 1] This case comes before this court as a certified question from the United States District Court for the District of Wyoming. We are called upon to answer the question of whether Wyoming allows recovery of purely emotional damages in a negligence action brought by a mother and daughter who were separated because two babies were switched at birth. We answer the certified question in the affirmative.

ISSUE

[¶ 2] The issue presented by the certified question is:

Whether a mother and daughter, who were separated for forty-three years because a hospital switched two newborn babies at birth, can maintain a negligence action in which the only alleged damages are great emotional pain, humiliation, anxiety, grief, and expenses for psychological counseling?

FACTS

[¶ 3] The certification order from the United States District Court sets forth a brief statement of facts relevant to the certified question. Those facts are as follows:

At 3:07 a.m. on April 8, 1958, Jean Morgan gave birth to a baby girl, Debra, at Campbell County Memorial hospital. Shortly thereafter, Polly Leyva gave birth to a baby girl named Shirley. The hospital staff switched Shirley and Debra in those early morning hours when the respective mothers were unconscious. When the mothers regained consciousness, Debra went home with Polly Leyva and Shirley went home with Jean Morgan.

The members of the hospital staff who switched the newborns and then failed to correct the mistake were acting within the scope of their employment for Banner Health System formerly known as Lutheran Hospitals and Homes Society of America. Banner Health Systems has staffed and operated Campbell County Memorial Hospital at all relevant times.

Shirley "Morgan" grew up in the Morgan home, however, she did not look like the other Morgan children due to a darker skin coloration. Because Shirley had a darker complexion, James Morgan, the "father," openly and frequently asserted that Shirley was not his child. The complaint alleges that due to James' mistrust, Shirley was ostracized and "terribly mistreated" by James Morgan and the Morgan siblings.

On April 3, 2001, a DNA test was performed to resolve the lingering doubts that James Morgan harbored about his wife's infidelity. The test established that James Morgan was not Shirley's father. A subsequent test performed on May 3, 2001, revealed that Jean Morgan was not Shirley's mother.

After the results of the tests, Shirley began searching for her biological mother. She was able to determine that only two children were born at that hospital on that day. She subsequently contacted Debra with the shocking news. On October 4, 2001, Debra called Polly Leyva and informed her of the disturbing revelation. Shortly after this phone call, Shirley introduced herself to Polly as her biological daughter. Unfortunately, Shirley's real father died several years ago.

Plaintiffs in this action are Shirley Larsen (f/k/a Shirley Morgan) and Polly Leyva. Plaintiffs have brought a negligence claim against the Defendant, Banner Health Systems, for switching the children at birth. However, the complaint only alleges damages for "great emotional pain, humiliation, anxiety, grief, and the expenses for psychological counseling." On August 28, 2002, the defendant filed a motion to dismiss arguing that "[t]here is no cause of action recognized in Wyoming for mere negligence which results only in alleged emotional injury."

STANDARD OF REVIEW

[¶ 4] We review the certified question pursuant to W.R.A.P. 11. Under this rule we are asked to settle questions of law in which it appears there is no controlling precedent from this court. W.R.A.P. 11.01.

DISCUSSION

[¶ 5] This case requires us to examine the situations in which a plaintiff may make a claim for emotional damages. "Compensation for emotional distress is not a new concept in Wyoming." Gates v. Richardson, 719 P.2d 193, 194 (Wyo.1986). Yet, as this case demonstrates, difficulty arises in determining exactly when a plaintiff may make a claim for emotional damages. A brief review of our previous decisions on this subject shows that the circumstances in which we allow plaintiffs to make claims for emotional damages are limited.

[¶ 6] Traditionally recovery for mental or emotional injury was only allowed when such injury was linked to an actual or threatened physical impact. Id., at 195 (citing W. Keeton, Prosser and Keeton on Torts § 54 at 362-64 (1984)). Recovery was generally not allowed in cases where negligent acts caused purely emotional harm and there was no impact or threat of impact. Gates, 719 P.2d at 195. The reasons for limiting emotional damages in such a manner have generally been identified as: 1) emotional disturbance which is not severe enough to have physical consequences is relatively harmless so the task of compensating for it would be unduly burdensome; 2) bodily harm provides a guarantee of genuineness without which emotional distress is too easily feigned; and 3) where a defendant's conduct is merely negligent the magnitude of his fault is not such that he should be required to compensate the plaintiff for a purely mental disturbance. Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 178-79 (1982) (citing Restatement, Second, Torts § 436A, cmt. b).

[¶ 7] Many state courts have modified this traditional rule. These courts have recognized that in some instances other considerations subjugate the reasons for limiting emotional damages. Therefore, some courts have embraced the idea that a duty of care should extend to at least some plaintiffs who suffer purely mental injuries. Gates, 719 P.2d at 195 and n. 1 (collecting cases). In Wyoming we have modified the traditional rule and have allowed recovery for purely emotional injury. However, like most states, Wyoming has clearly restricted the instances in which recovery for emotional injury without accompanying physical injury will be allowed. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997).

[¶ 8] Recovery for purely emotional distress is permitted in Wyoming in certain limited underlying actions. These actions are: "1) some intentional torts, Waters v. Brand, 497 P.2d 875, 877-878 (Wyo.1972) (false imprisonment); Cates v. Eddy, 669 P.2d 912, 921 (Wyo.1983) (malicious prosecution); 2) violation of certain constitutional rights, Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo.1992); and 3) breach of the covenant of good faith and fair dealing, State Farm Mutual Auto. Ins. Co. v. Shrader, 882 P.2d 813, 833 (Wyo.1994)." Blagrove, 934 P.2d at 1275-76. We have also recognized the torts of intentional and negligent infliction of emotional distress, but we have done so only under limited circumstances. Blagrove, 934 P.2d at 1275; Gates, 719 P.2d at 195 (negligent infliction of emotional distress limited by the requirements of a family relationship and observation of serious bodily harm); Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo.1986) (intentional infliction of emotional distress limited by the requirements of extreme or outrageous conduct and severe emotional distress).

[¶ 9] This court has also considered the issue of purely emotional damages in a negligence action involving a car collision. In Daily v. Bone, 906 P.2d 1039 (Wyo.1995), Bone failed to stop the snowmobile he was driving at a stop sign. Bone's failure to stop caused a collision with Daily's vehicle. Id., at 1042. Daily was not physically injured in the collision; Bone, however, was killed as a result of the impact. Id. Witnessing Bone's impact and death caused Daily posttraumatic stress disorder, depression, and agoraphobia. Id. We held that recovery in tort for injuries arising out of an automobile accident should not be denied simply because the plaintiff's injuries were mental rather than physical, as long as the plaintiff could prove negligence, impact, and damages proximately flowing therefrom. Id., at 1044.

[¶ 10] Our holding in Daily convinced some that we had established a claim for negligence alleging only mental injury. In Blagrove, however, we explained that our decision in Daily "has the limited scope of allowing recovery for mental injury absent physical injury in an automobile collision case." Blagrove, 934 P.2d at 1276 (holding that as a general rule emotional distress damages in connection with property damage are not compensable). We went on to explain that Daily resulted from the particular facts of that case and "did not generally establish that a claim for negligence alleging only mental injury had been recognized in Wyoming." Id. However, we note that Blagrove was a case in which the defendant's negligence resulted in property damage; and we qualified the previous statement by also saying that Daily did not provide "an analysis which would extend its result to a property damage situation."

[¶ 11] Our most recent in-depth discussion of the availability of emotional distress damages in negligence actions is found in Long-Russell v. Hampe, 2002 WY 16, 39 P.3d 1015 (Wyo.2002). The plaintiff in Hampe claimed that her attorney was negligent when handling her divorce, which involved child custody issues. We were called upon to answer certified questions that required us to decide...