Leong v. Takasaki

• Decision Date: 28 March 1974
• Docket Number: No. 5349,5349
• Citation: Leong v. Takasaki, 520 P.2d 758, 55 Haw. 398 (Haw. 1974)
• Parties: , 94 A.L.R.3d 471 Troy S. LEONG, a minor, by his next friend, Gail M. Petagno, Plaintiff-Appellant, v. Dennis TAKASAKI, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 758

520 P.2d 758

55 Haw. 398, 94 A.L.R.3d 471

Troy S. LEONG, a minor, by his next friend, Gail M. PetagnoPlaintiff-Appellant, v.Dennis TAKASAKI, Defendant-Appellee.

No. 5349.

Supreme Court of Hawai'i.

March 28, 1974.

Syllabus by the Court

1.Where the defendant is the moving party, there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law if, upon viewing the record in the light most favorable to the plaintiff, it is clear that the plaintiff would not be entitled to recover under any discernible theory.

2.The requirements of physical impact and resulting physical injury should not stand as artificial bars to recovery for the negligent infliction of serious mental distress.

3.Serious mental distress may be found where a reasonable man, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

4.When it is foreseeable that a reasonable plaintiff-witness to an accident would not be able to cope with the mental distress engendered by such circumstances, the trial court should conclude that defendant's conduct is the proximate cause of plaintiff's injury and impose liability on the defendant for any damages arising from the consequences of his negligent act.

5.The absence of a blood relationship between accident victim and plaintiff-witness should not foreclose plaintiff's recovery of damages for emotional distress occasioned by the accident.

6.The physician or psychiatrist must rely on the plaintiff's testimony, the context in which the trauma occurred, medical testing of any physical ramifications, the psychiatrist's knowledge of pain and disability likely to result from such trauma, and even the framework of human experience to determine the amount of pain resulting naturally as a response to defendant's act, whether the trauma induced was a precipitating cause of any neurosis, and whether the total response is beyond the level of stress with which a reasonable man may be expected to cope.

Charles S. Lotsof, Honolulu, for plaintiff-appellant.

G. Richard Morry and Edmund Burke, Conroy, Hamilton, Gibson, Nickelsen & Rush, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., LEVINSON, KOBAYASHI and OGATA, JJ., and CHANG, Circuit Judge, assigned by reason of vacancy.

RICHARDSON, Chief Justice.

Plaintiff-appellantTroy Leong, through his next friend Gail Petagno, brought this action to recover damages for nervous shock and psychic injuries suffered without accompanying physical impact or resulting physical consequences or manifestations thereof, when he witnessed his step-grandmother, Mrs. Louise J. Pittala, being struck and killed by an automobile driven by defendant-appelleeDennis Takasaki.From the trial court's grant of defendant's motion for summary judgment, this appeal was taken.

I

At approximately 7:00 p. m. on the evening of January 7, 1972, plaintiff, who was 10 years old at the time, and Mrs. Pittala, his stepfather's mother, alighted from a kokohead-bound bus near the intersection of Kalanianaole Highway and Waiele Street in Honolulu, and proceeded to cross Kalanianaole Highway walking hand-in-hand in the crosswalk from the makai to the mauka side of the highway.¹Defendant was driving an automobile in the middle lane of three lanes on Kalanianaole Highway in a kokohead direction at approximately 35 miles per hour.Defendant admitted that he did not see Mrs. Pittala until the moment of impact.Plaintiff saw the vehicle approach him, and stopped walking when he realized that it was not going to stop.Mrs. Pittala either did not see the vehicle or believed that it was going to stop and continued walking.She was struck and killed instantly be the vehicle.Although plaintiff stood several feet from Mrs. Pittala at the point of impact, no part of the car touched him and he suffered no physical injuries at the time.He alleges in his complaint that he sustained 'nervous shock to his entire system and the injuries to his psyche are of a permanent nature,' but no resulting physical injuries are alleged.

Plaintiff's natural and legal mother is Gail M. Petagno, the wife of Neil S. Petagno.Mrs. Pittala, who was the natural and legal mother of Neil Patagno, had lived with her son and daughter-in-law since moving to Hawaii from the mainland several months previously.Plaintiff alleges that his relationship to Mrs. Pittala was an extremely close one, and that she cared for him as if she were his natural grandmother.

Defendant moved for summary judgment under Rule 56(c), H.R.C.P., on the grounds that as a matter of law, there can be no recovery in tort on a claim for mental distress suffered without physical injury.Although both sides submitted memoranda of law on the question to the trial court, neither party submitted affidavits to clarify the material facts in this case.No transcript was preserved of oral argument on the motion.The trial court granted defendant's motion, and ordered summary judgment in favor of the defendant.

II

Rule 56, H.R.C.P., states in pertinent part:

The (summary) judgment sought shall be rendered forthwith if the pleadings depositions, (answers to interrogatories) and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

This court, in Abraham v. Onorato Garages, 50 Haw. 628, 631-632, 446 P.2d 821, 825(1968), has stated that:

Where the defendant is the moving party, there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law if, upon viewing the record in the light most favorable to the plaintiff, it is clear that the plaintiff would not be entitled to recover under any discernible theory.

We have also held that the burden 'is upon the party moving for summary judgment to demonstrate clearly that there is no genuine issue of fact,' and any doubt as to the existence of such issues must be resolved against him.State v. Zimring, 52 Haw. 472, 475, 479 P.2d 202, 204(1970).

From defendant's memorandum in support of his motion and from plaintiff's deposition, it is apparent that plaintiff had never consulted a doctor for treatment of his alleged nervous shock or psychic injuries.However, plaintiff's statements that his grades in school had dropped immediately after the accident but had subsequently risen to their previous level and that he thinks about the accident at times are indications of possible psychic damage.Thus plaintiff's statements create a disputed issue of material fact.We cannot conclude from this record that the defendant has met his burden of clearly proving that plaintiff suffered no compensable injuries and that no genuine issues of material fact remain for trial.

Nor can we conclude that defendant is entitled to summary judgment as a matter of law.The right of a plaintiff to maintain an action in damages for mental or emotional disturbance unaccompanied by the infliction of contemporaneous physical injury or not resulting in physical injury is a most unsettled question in the law of torts, an area 'clearly in a process of growth, the ultimate limits of which cannot as yet be determined.'Prosser, Torts 50, § 12(4th ed. 1971).We have previously reversed an entry of summary judgment where we believed that a final decision in a case of such vast public importance should not be based on a limited and indefinite factual foundation, State v. Zimring, 52 Haw. 472, 476, 479 P.2d 202, 204-205(1970)(case involving title to shore-line property formed by volcanic eruption), and we feel this case merits similar treatment.In remanding to the trial court for a full determination of this case, it is desirable that we express some guidelines on the question.

We therefore reverse and remand for further proceedings in accordance with this opinion.

III

Defendant contends that no claim for relief exists in favor of a bystander witness to a motor vehicle-pedestrian accident when (1) the bystander sustains no physical impact and suffers emotional distress alone without either consequent physical injury or the objective manifestations of mental damage, and (2) the witness is not a member of the injured party's immediate family but is only related by distant affinity.

The traditional rule in tort law is that there is a recovery for the negligent infliction of mental distress alone, unless accompanied by physical impact or resulting in physical injury or objective manifestations thereof.Restatement Second, Torts 461, § 436A(1965).The considerations underlying this treatment of mental distress only as parasitic damages are (1) a fear of fraudulent claims; (2) the potential of unlimited and indefinite liability for every type of mental disturbance; (3) unforeseeability of the injury; and (4) the imposition of burdensome and disproportionate liability on the tortfeasor in relation to his culpability.In order to avoid factual questions which involve these difficulties, courts have not employed general tort principles but have resorted to artificial standards or a search for special circumstances that guarantee a claim for relief is not spurious.Prosser, Torts 330, § 54(4th ed. 1971).

However, this court has not hesitated to grant negligently-inflicted mental distress unaccompanied by resulting physical injuries independent legal protection.In Rodrigues v. State, 52 Haw. 156, 472 P.2d 509(1970), we permitted recovery in tort for mental distress suffered as a result of property damage to plaintiffs' home caused by the state's negligence.Subsequently, in Dold v. Outrigger Hotel, 54 Haw. 18, 501 P.2d 368(1972), we permitted recovery in tort for emotional distress and disappointment, in addition to damages for out-of-pocket losses, where a contract is broken in a wanton or reckless manner.

Defendant contends that the...