Maloney v. Conroy

• Decision Date: 26 July 1988
• Docket Number: No. 13342,13342
• Parties: Robert F. MALONEY, Jr., Administrator (ESTATE OF Anita MALONEY), et al. v. Michael CONROY et al.
• Court: Connecticut Supreme Court

Page 1059

545 A.2d 1059

208 Conn. 392

Robert F. MALONEY, Jr., Administrator (ESTATE OF Anita MALONEY), et al. v. Michael CONROY et al.

No. 13342.

Supreme Court of Connecticut.

Argued May 12, 1988.

Decided July 26, 1988.

Richard A. Fuchs, Bridgeport, with whom was James D. Horwitz, New Haven, for appellant (plaintiff Susan Maloney).

Bryan L. LeClerc, with whom was Thomas L. Brayton, Waterbury, for appellee (named defendant).

Michael P. Del Sole, New Haven, with whom was Stephen P. Sachner, Cheshire, for appellees (defendant George H. Dickenson et al.)

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

SHEA, Associate Justice.

The plaintiff Susan Maloney filed an amended complaint ¹ against two physicians, Michael Conroy and George Dickenson, and also the Meriden-Wallingford Hospital seeking damages for a severe emotional disturbance alleged to have resulted from the malpractice of the defendants in treating her mother, Anita Maloney. After the trial court had granted motions of the defendants to strike her complaint, the court rendered a partial judgment against the plaintiff. In her appeal the plaintiff has raised the single issue of whether one who is closely related to a victim of alleged malpractice may recover for a severe emotional disturbance claimed to have resulted from observing the malpractice perpetrated on the victim. We hold that a bystander to medical malpractice may not recover for emotional distress and accordingly find no error in the striking of the complaint by the trial court.

For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). The facts set forth in the complaint that are pertinent to this appeal may be summarized as follows: The plaintiff, who lived with her mother until the time of her mother's death, was present at bedside while her mother was being treated by the defendants. Following an operation on her mother, the plaintiff observed her mother's health deteriorate under the treatment of the defendants and culminate in death. The suffering and death of the mother were caused by the negligence of the defendants in failing to care for her in a reasonably competent manner, including their failure to heed several requests of the plaintiff that they investigate various symptoms she had observed relating to her mother's deteriorating condition. The defendants knew or should have known that their conduct was likely to cause the unreasonable risk of severe psychological, physiological and emotional distress that the plaintiff ultimately did suffer as a result of their negligent treatment of her mother. As a result of the emotional distress caused by the defendants' negligence, the plaintiff has incurred expenses for treatment of her mental condition and her ability to carry on her normal activities has been impaired.

In Strazza v. McKittrick, 146 Conn. 714, 718-19, 156 A.2d 149 (1959), where this court first dealt with a bystander emotional disturbance claim based upon negligence, we held unequivocally that a mother could not recover for "nervous shock resulting from fear of injury to her child" after a truck had run into a porch on which the mother, who heard the crash from inside the house, had told the child to wait. We relied upon the view prevailing generally at that time that one could not recover "for injuries occasioned by fear of threatened harm or injury to the person or property of another." Id.

At our next encounter with such a claim in Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980), where the circumstances were quite similar to the present case, we upheld the trial court in striking a count of the complaint alleging a cause of action in behalf of a mother for physical, mental and emotional harm caused by witnessing the death of her daughter, as well as the deterioration of her daughter's health, that had resulted from the malpractice of the defendants. We noted, however, the "divergence of opinion among the jurisdictions regarding the recognition of a cause of action for emotional distress to a bystander arising from witnessing the negligently inflicted injury of another." Id., 84, 438 A.2d 6. We discussed the view of the New York Court of Appeals in Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969), holding that "a cause of action does not lie for emotional injury sustained by a plaintiff solely as a result of injuries inflicted directly upon another regardless of the relationship of the parties or the fact that the plaintiff was an eyewitness to the negligent act." Amodio v. Cunningham, supra, 182 Conn. at 85, 438 A.2d 6. We also considered the opinion of the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), in which a bare majority of the court recognized a cause of action for emotional distress on the part of a mother who had seen her child being struck and killed by a negligently operated automobile that did not endanger the mother. In Dillon the court set forth three criteria for determining whether the injury to the plaintiff was reasonably foreseeable, the standard touchstone of liability for negligence, in a particular case: "(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." Id., 740-41, 441 P.2d 912, 69 Cal.Rptr. 72.

The Amodio opinion analyzed several later California cases applying Dillon in medical malpractice cases as "imposing a policy limitation upon the liability for emotional distress suffered by a witness to alleged negligence by requiring that the plaintiff observe a negligent act contemporaneously causing injury to the third party." Amodio v. Cunningham, supra, 196 Conn. at 92, 491 A.2d 368. Because the complaint in Amodio indicated "that the injuries suffered by the plaintiff's child became manifest a considerable period of time after the alleged negligence of the defendants occurred," the court held that, "even were we inclined to adopt the approach taken in Dillon and the cases relying thereon, the complaint in the present case would nevertheless fail to state a cognizable cause of action." Id., at 92, 491 A.2d 368.

The trial court in this case similarly concluded that the complaint did not allege that the plaintiff had suffered "an injury contemporaneously with the sensory perception of the alleged negligent conduct of the defendants" or that the defendants had committed "any positive act impacting contemporaneously upon her," noting that the "alleged negligent conduct consisted of a failure to act." The plaintiff has not attempted to distinguish the allegations of her complaint from those in Amodio, but maintains that a more recent California case, Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985), has modified the contemporaneous sensory perception requirement of Dillon to allow a recovery for emotional disturbance resulting from negligence that does not fall within the category of a "brief and sudden event viewed contemporaneously by the plaintiff."

In Ochoa, as in this case, the plaintiff, over a period of two days, repeatedly called to the attention of the doctor and other medical personnel treating her son various symptoms she had observed indicating that his illness, which resulted in his death, was far more serious than had been assumed. The California Supreme Court concluded that its former view that a "sudden and brief event" was necessary to satisfy the second Dillon guideline of contemporaneous perception of the negligent act should not bar recovery "when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child...." Id., 170, 703 P.2d 1, 216 Cal.Rptr. 661.

We agree with the plaintiff that her complaint sufficiently stated a cause of action for emotional disurbance under the Dillon criteria as modified in Ochoa. She has alleged that she observed her mother's condition deteriorate under the care of the defendants and that her requests that certain symptoms of her mother be given attention were never heeded, implying her awareness that the defendants' neglect was harming her mother. We conclude, nevertheless, that the court properly granted the motion to strike the complaint, because we are not inclined to follow the lead of the California courts in allowing a bystander to recover for emotional disturbance resulting from malpractice upon another person that a bystander may have observed.

Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned, apart from the problem of permitting bystander recovery, that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act. W. Prosser & W. Keeton, Torts (5th Ed.1984) § 54, pp. 359-61. Perhaps for this reason, even those courts that permit recovery for emotional disturbance alone have erected some barriers not applicable to bodily injury claims. Thus, § 436A of the Restatement takes the position that "the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the...