Nutter v. Frisbie Memorial Hosp.

• Decision Date: 16 April 1984
• Docket Number: No. 83-288,83-288
• Citation: 474 A.2d 584,124 N.H. 791
• Parties: Clyde A. NUTTER, Administrator of the Estate of Amanda M. Nutter, Clyde A. Nutter and Gail Nutter v. FRISBIE MEMORIAL HOSPITAL et al.
• Court: New Hampshire Supreme Court

Page 584

474 A.2d 584

124 N.H. 791

Clyde A. NUTTER, Administrator of the Estate of Amanda M. Nutter, Clyde A. Nutter and Gail Nutter v. FRISBIE MEMORIAL HOSPITAL et al.

No. 83-288.

Supreme Court of New Hampshire.

April 16, 1984.

Stephen R. Fine & Associates P.A., Manchester (Charles A. Meade, Manchester, on brief, and Stephen R. Fine, Manchester, orally), for plaintiffs.

Sulloway, Hollis & Soden, Concord (Robert M. Larsen & a., Concord, on brief, and Robert M. Larsen orally), for defendants.

BROCK, Justice.

Amanda M. Nutter, aged three months, died on March 31, 1980, allegedly as a result of malpractice by the defendant doctors, who are employed by the defendant Frisbie Memorial Hospital. Counts I and II of the complaint in this case set forth claims for wrongful death brought by the administrator of Amanda's estate. Count III is a separate action brought by Amanda's parents, seeking recovery for their "severe mental and emotional harm and distress, accompanied by physical symptoms" which allegedly resulted from the harm inflicted on their daughter by the defendants' malpractice.

By agreement of the parties, and pursuant to RSA 491:17, the Superior Court (Goode, J.) transferred without ruling the following question of law: "Do the parents of Amanda Nutter have a cause of action under Count III of the writ which would permit them to recover damages for their emotional distress allegedly resulting from defendants' medical malpractice?" For the reasons which follow, we answer this question in the negative.

The facts, as stipulated by all parties, are briefly stated. Amanda was born on December 28, 1979. On March 28, 1980, she became ill with symptoms of vomiting and coughing, and was seen by the defendant Dr. DeJohn, her regular pediatrician. Dr. DeJohn examined Amanda in his office, ordered chest X-rays, and eventually diagnosed pneumonia.

Amanda was allowed to return home. On March 31, 1980, she developed complications while in the care of a babysitter and was transported to the hospital by ambulance. She arrived there at 2:50 p.m. and died less than half an hour later, at 3:18 p.m. Her parents, who had been called by the babysitter and had reached the hospital shortly after the ambulance, were immediately advised of Amanda's death and were taken into the emergency room to view her body.

Because we are asked to rule, in essence, on a motion to dismiss, "the plaintiff's allegations of fact and the reasonable inferences therefrom are assumed to be true and are construed most favorably to the plaintiff.... If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied." Royer Foundry & Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 651, 392 A.2d 145, 146 (1978) (citations omitted). Accordingly, our discussion assumes that the plaintiffs will prove that the defendants' negligence caused their daughter's death, and thereby produced the emotional harm and physical symptoms alleged in Count III.

The plaintiffs concede that, to find a cause of action in this case, we must expand the boundary of liability for negligent infliction of emotional harm that we set out in Corso v. Merrill, 119 N.H. 647, 657-59, 406 A.2d 300, 306-08 (1979). In that case we refused to bar recovery "for the serious emotional injury to parents who contemporaneously perceive or witness a serious injury to their child that is caused by defendant's negligence," id. at 658, 406 A.2d at 307, even when that negligence did not place the parents themselves in fear of their own safety.

In Corso we applied traditional negligence principles of foreseeability and causation, but we also recognized the necessity of adopting well-defined guidelines that would prevent the imposition of "remote and unexpected liability" on defendants in such bystander cases. Id. at 656, 406 A.2d at 306 (citing Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), and subsequent California cases).

This necessity arises because the liability of a negligent defendant to a bystander parent is largely derivative, i.e., based on the emotional ties between the parent and the injured child. The New York Court of Appeals, in refusing to permit recovery by bystanders outside the "zone of danger," summarized the problem thus:

"Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. The risks of indirect harm from the loss or injury of loved ones is [sic] pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children. It is enough that the law establishes liability in favor of those directly or intentionally harmed."

Tobin v. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561-62 (1969).

We rejected the zone-of-danger rule in Corso for several reasons, including the fact that its basis, the plaintiff's fear for his or her own safety, bore no direct relationship to the injury being compensated--the plaintiff's emotional reaction to an injury suffered by someone else. See Corso v. Merrill, supra 119 N.H. at 656, 406 A.2d at 306 (citing Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978)). At the same time, we recognized the need for a clearly defined boundary to liability in this area, where both foreseeability and causation become...