Rockhill v. Pollard

• Decision Date: 26 May 1971
• Citation: 485 P.2d 28,259 Or. 54
• Parties: Norma ROCKHILL, Appellant, v. William T. POLLARD, Respondent.
• Court: Oregon Supreme Court

Page 28

485 P.2d 28

259 Or. 54

Norma ROCKHILL, Appellant, v. William T. POLLARD, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 30, 1970.

Decided May 26, 1971.

Max S. Taggart, II, Springfield, argued the cause for appellant. With him on the brief were Sanders, Lively & Wiswall, Springfield.

Richard Bryson, Eugene, argued the cause for respondent. With him on the brief was Windsor Calkins, Eugene.

McALLISTER, Justice.

The question posed here is whether plaintiff made out a prima facie case that the defendant's outrageous conduct caused her severe emotional distress. The lower court granted a nonsuit at the conclusion of plaintiff's case. We think the issue should have been submitted to the jury.

In Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969), this court recognized the tort of outrageous conduct and used as a test of its limits 1 Restatement of Torts 2d, § 46:

'(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

'(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

'(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

'(b) to any other person who is present at the time, if such distress results in bodily harm.'

In deciding whether the trial court in this case properly granted the motion for involuntary nonsuit we view the evidence in a light most favorable to plaintiff, accepting as true all of plaintiff's competent evidence and every reasonable inference of fact which can be drawn from it. Pakos v. Clark, supra, 253 Or. at 116, 453 P.2d 682. There is competent evidence tending to prove the facts hereinafter set out.

Plaintiff, her 10-month-old daughter Marla, and her mother-in-law Christine Rockhill were injured in an automobile accident on the evening of December 16, 1967. Plaintiff and her mother-in-law suffered cuts and bruises; Marla was rendered unconscious. Plaintiff's husband, a Navy-trained medical technologist who was also a passenger in the car, testified that immediately after the accident Marla was completely lifeless and he thought she was dead. He tried unsuccessfully to rouse her; she did not respond at all, even to pinches on the arms and legs.

A passing motorist took plaintiff, Christine Rockhill, and Marla to Junction City and made arrangements for them to be seen by the defendant, Dr. Pollard. They met Dr. Pollard at his Junction City office shortly before 9 o'clock in the evening.

Both plaintiff and Christine Rockhill testified that defendant was rude to them from the moment they met him; plaintiff testified:

'And the first thing he looked at us, and he had a real mean look on his face, and this is what he said. He said, 'My God, women, what are you doing out on a night like this?' * * * and my mother- in-law tried to explain to him why we were on the road, and her and I both pleaded to him.'

Without making any examination, defendant told them there was nothing wrong with any of them.

Marla was still unconscious at this time. According to plaintiff:

'She was very lifeless. I was saying her name, and she wouldn't respond at all. Her eyelids were a light blue. She was clammy, very cold.

'In fact, I thought she was dead at the time.'

Christine Rockhill also testified that Marla appeared lifeless, and was noticeably blue around the eyes. Nevertheless, plaintiff testified that she had to ask defendant several times to examine the child. When he finally agreed to do so, plaintiff took her to the examining room and removed her clothes.

'* * * He took a stethoscope and laid it on her heart, and that was all he did then, and then he took a knee hammer and put it on her knees, but there wasn't any response at all, and that is what his examination consisted of.'

While plaintiff was dressing the child after this examination, Marla suddenly vomited a considerable amount. Without any further examination of the child or of the vomited material, defendant told plaintiff that there was nothing wrong, and that the vomiting had been caused by overfeeding.

Defendant never examined plaintiff or her mother-in-law or suggested that they get treatment for themselves elsewhere, although it was obvious that they were injured. Both were limping. Plaintiff was bleeding from cuts on her face and inside her mouth, and had visible bruises on her mouth and her knee. Christine Rockhill was bleeding from a cut on her forehead. Defendant insisted several times that there was nothing wrong with them. Although a later examination revealed that their injuries were not serious, the cut in plaintiff's mouth did require suturing. However, defendant's attention to their injuries was limited to directing Christine Rockhill to 'Get in there and clean yourself up. You are a mess.'

Nor did defendant give them any advice about care or further attention for Marla, even when asked. Plaintiff testified:

'* * * The doctor was out of the room, and I told her (Christine Rockhill), I says, 'We have got to get help for this baby,' and she said, 'Well, what are we going to do?'

'And the doctor came back in the room, and she asked the doctor, she says, 'What are we going to do?' And he just shrugged his shoulders and said he didn't know, * * *.'

When Christine Rockhill suggested that her brother would pick them up at defendant's office, defendant said, 'My God, woman, I can't stay here until somebody comes and gets you.' Although the temperature was below freezing and Marla's clothing and blanket were wet with vomit, he told them to wait outside by a nearby street light while someone came from Springfield to get them.

Forced to leave defendant's office, they found an open service station where they waited until plaintiff's husband found them about twenty minutes later and took them to a Eugene hospital. Plaintiff's husband testified that when he picked them up Marla's condition was the same as it had been immediately after the accident. Based on her pallor, the clamminess of her skin, and the 'complete limpness of the body,' it was his opinion that the child was in shock.

Marla was examined in the emergency room at Sacred Heart Hospital in Eugene by Dr. White. Dr. White testified that when he first saw her she was pale and listless and only semi-conscious, and appeared to be suffering from moderately severe shock. He found a bruise over the right eye and a swelling behind the right ear. He concluded after his initial examination that there was a strong possibility that she had suffered a head injury, and that she should receive vigorous medical treatment without delay. He also testified in response to hypothetical questions that expert treatment should have been obtained immediately and that it was hazardous to take the child out into sub-freezing weather in wet clothing.

Plaintiff was given emergency treatment at the hospital and released. Marla spent about a week in the hospital, undergoing surgery to elevate a depressed skull fracture. Her recovery was apparently satisfactory.

Concerning the conduct which will give rise to liability, the Restatement comments include the following general summary of the case law:

'* * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous! " Comment d.

We think the above summary is of minimal aid in marking the limits of extreme and outrageous conduct which will support an action. It is composed of inconsistent generalities with different connotations for different people. The last sentence is especially suspect. Many members of the community...