Philibert v. Kluser, CC 13CV01410

Citation385 P.3d 1038,360 Or. 698
Decision Date22 December 2016
Docket NumberSC S063738,CC 13CV01410
Parties Stacie PHILIBERT, in her capacity as guardian ad litem for Cameron Hollenbeck-Hatch and Domanick Hollenbeck-Hatch, Petitioners on Review, v. Dennis Dixon KLUSER, Respondent on Review.
CourtSupreme Court of Oregon

360 Or. 698
385 P.3d 1038

Stacie PHILIBERT, in her capacity as guardian ad litem for Cameron Hollenbeck-Hatch and Domanick Hollenbeck-Hatch, Petitioners on Review,
Dennis Dixon KLUSER, Respondent on Review.

CC 13CV01410
SC S063738

Supreme Court of Oregon.

Argued and submitted September 19, 2016.
December 22, 2016

Kathryn H. Clarke, Portland, argued the cause and filed the brief for the petitioners on review. Also on the briefs was Tim Williams, Bend.

385 P.3d 1040

Flavio A. Ortiz, Lachenmeier Enloe Rall & Ortiz, Portland, argued the cause and filed the brief for the respondent on review. Also on the briefs was Martin M. Rall.

Cody Hoesly, Larkins Vacura LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices, and Rebecca A. Duncan, Judge of the Court of Appeals, Justice pro tempore.**


360 Or. 700

This case requires us to consider the circumstances, if any, under which damages may be recovered by a bystander who suffers serious emotional distress as a result of observing the negligent physical injury of another person. Plaintiffs witnessed the death of a family member who was run over by a truck, but were not themselves physically injured.1 They sought recovery for their emotional distress. The trial court dismissed the action and the Court of Appeals affirmed, both relying on the "impact rule." Philibert v. Kluser , 274 Or.App. 195, 361 P.3d 610 (2015). The impact rule allows a plaintiff to seek damages for negligently caused emotional distress only if the plaintiff can show some physical impact to himself or herself, thus precluding the claims brought by plaintiffs in this case. For the reasons that follow, we conclude that plaintiffs should be able to pursue their claims notwithstanding the fact that they did not themselves suffer physical injury. We therefore reverse the decision of the Court of Appeals and the judgment of the circuit court, and remand the case to the trial court.


Because plaintiffs appeal a judgment dismissing their complaint for failure to state a claim, ORCP 21 A(8), we take as true the facts alleged in the complaint. Plaintiffs are two brothers, aged eight and twelve, who were crossing a street in a crosswalk with the walk signal with their seven-year-old younger brother. Defendant negligently drove his pickup truck through the crosswalk, running over the youngest boy and narrowly missing the other two. The brother who was struck died at the scene. The two surviving brothers witnessed their brother's death and experienced serious emotional injuries as a result.

Plaintiffs filed this action against the driver, alleging negligence and seeking compensation for their emotional injuries. Their injuries include severe emotional distress, depression, post-traumatic stress disorder, aggression, and severe anxiety. Defendant moved to dismiss their complaint

360 Or. 701

for failure to state a claim upon which relief could be granted, arguing that, as bystanders who had not been physically injured by defendant, they could not recover for their emotional distress. The trial court granted that motion, applying the "impact rule" announced in Saechao v. Matsakoun , 78 Or.App. 340, 717 P.2d 165, rev. dismissed , 302 Or. 155, 727 P.2d 126 (1986), and plaintiffs appealed. The Court of Appeals affirmed the trial court's dismissal, also citing Saechao . Philibert , 274 Or.App. at 195, 361 P.3d 610.

In Saechao , the Court of Appeals confronted a situation factually similar to the present case. A driver negligently drove a car onto a sidewalk, killing one child, striking a sibling, and leaving two additional siblings untouched. Saechao , 78 Or.App. at 342-43, 717 P.2d 165. The three surviving children sued to recover for the emotional distress caused by witnessing their brother's death. Id. at 343, 717 P.2d 165. The court recognized the case as presenting a question of first impression of "when a person who witnesses the negligently caused injury or death of a member of the immediate family may recover damages for serious emotional distress resulting from witnessing the accident." Id. at 342, 717 P.2d 165. A divided, en banc court adopted the impact rule, "requiring that there be a direct accompanying [physical] injury to the person who suffers the emotional distress as a prerequisite to its compensability." Id . at 346, 717 P.2d 165. As a result,

385 P.3d 1041

the child who was physically injured was permitted to seek emotional distress damages caused by witnessing his brother's death, but the claims by the two siblings who were not physically injured were dismissed. Judge Warren, writing for four judges, dissented. Id. at 348, 717 P.2d 165. The two children who were not injured, and thus had no claim, petitioned this court for review. We allowed review, but the case was settled and the petition for review dismissed. Saechao , 302 Or. at 156, 727 P.2d 126. The Court of Appeals has continued to follow the impact rule in subsequent cases, as it did here. See, e.g. , Sherwood v. ODOT , 170 Or.App. 66, 77–78, 11 P.3d 664 (2000), rev. den. , 331 Or. 692, 26 P.3d 149 (2001). We directly address the bystander recovery issue here for the first time.


Plaintiffs urge us to abandon the impact rule and adopt in its place a rule that allows them to recover damages

360 Or. 702

for their emotional distress without showing any physical harm to themselves. They suggest a "zone of danger" rule or a foreseeability-based rule. Although we agree that the impact test should not control bystander recovery, we do not adopt either of their suggested alternatives. Instead, for the reasons discussed below, we conclude that the rule articulated in the Restatement (Third) of Torts section 48 (2012) best promotes principled outcomes while avoiding the prospect of imposing potentially unlimited liability on defendants for the emotional distress that their negligence may cause. We begin our discussion by reviewing our existing case law regarding recovery of damages for negligent infliction of emotional distress and the role that foreseeability has in those claims. We then consider whether a claim for recovery of those damages in the circumstances presented here—where the plaintiff witnesses the negligently caused traumatic injury or death of a close family member—is consistent with our case law and should be recognized as a common law tort claim. Answering that question in the affirmative, we evaluate several tests for recovery in such circumstances that have been used by other courts, rejecting the impact rule adopted by the Court of Appeals in Saechao and plaintiffs' proposed zone of danger rule and adopting instead the test set out in section 48 of the Restatement. Finally, we apply the Restatement test to the facts of this case.

A. The Norwest Framework

In Norwest v. Presbyterian Intercommunity Hosp. , 293 Or. 543, 558–61, 652 P.2d 318 (1982), we mapped the landscape of cases addressing claims for emotional distress damages and explained the framework that guides recovery for those injuries. Oregon allows plaintiffs to recover damages for emotional distress when they are physically injured, see id. at 558, 652 P.2d 318, and when the defendant acted intentionally, id. at 559, 652 P.2d 318 (citing Hall v. The May Dept. Stores , 292 Or. 131, 637 P.2d 126 (1981) ). At issue here is a third basis recognized in Norwest for recovery of damages for emotional distress: when a defendant negligently causes foreseeable, serious emotional distress and also infringes some other legally protected interest. Norwest , 293 Or. at 559, 652 P.2d 318. The plaintiff's claim in that circumstance partially resembles

360 Or. 703

a common law negligence claim in that it rests on the concept of foreseeability. Norwest made clear, however, that the injury's foreseeability, standing alone, is insufficient to establish the defendant's liability: there must also be another "legal source" of liability for the plaintiff to recover emotional distress damages. Norwest , 293 Or. at 569, 652 P.2d 318 (explaining that liability for emotional distress must have "a legal source besides its foreseeability"). Those two concepts identified in Norwest —foreseeability and the source of a legally protected interest—guide our analysis in this case.

Perhaps the simplest legally protected interest is that to be "free from physical harm at the hands of another."2

385 P.3d 1042

Gaston v. Parsons , 318 Or. 247, 255 n. 8, 864 P.2d 1319 (1994). In the context of that general interest to be free from physical harm, a defendant is liable to a plaintiff for damages resulting from the defendant's conduct that "unreasonably created a foreseeable risk * * * of the kind of harm that befell the plaintiff." Fazzolari v. Portland School Dist. No. 1J , 303 Or. 1, 17, 734 P.2d 1326 (1987) ; see also Piazza v. Kellim , 360 Or. 58, 69–72, 377 P.3d 492 (2016)...

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