Saechao v. Matsakoun

• Decision Date: 01 July 1986
• Citation: 78 Or.App. 340,717 P.2d 165
• Parties: Yoon Fou SAECHAO, Guardian Ad Litem for Kae Fou Saechao, Sou Fou Saechao, and Farm Fou Saechao, Appellant, v. Khamchana MATSAKOUN and Thon Boupha, Respondents. A8406-03428; CA A34147. . *
• Court: Oregon Court of Appeals

Page 165

717 P.2d 165

78 Or.App. 340

Yoon Fou SAECHAO, Guardian Ad Litem for Kae Fou Saechao, Sou Fou Saechao, and Farm Fou Saechao, Appellant, v. Khamchana MATSAKOUN and Thon Boupha, Respondents.

A8406-03428; CA A34147.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted June 3, 1985. Resubmitted In Banc Feb.

5, 1986.

Decided April 9, 1986.

Reconsideration Denied June 6, 1986.

Review Allowed July 1, 1986.

Stephen C. Hendricks, Portland, argued the cause and filed brief for appellant.

Robert E. Barton, Portland, argued the cause for respondents. With him on brief was Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

RICHARDSON, Judge.

This case presents the questions of first impression of whether and 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. ¹ The trial court dismissed the action as to two of the three plaintiffs ² for failure to state a claim. A final judgment was entered against those plaintiffs pursuant to ORCP 67 B, and they appeal.

Plaintiff alleged:

"II.

"On or about July 29, 1983 two-year old Ou Fou Saechao was riding his tricycle on the sidewalk in the apartment complex known as Halsey Square in Portland, Oregon. His * * * brother, Kae Fou Saechao was immediately adjacent to him. Also on the sidewalk, within fifteen feet and within a 'zone of danger' were his * * * brother, Sou Fou Saechao and one of his sisters, Farm Fou Saechao.

"III.

"At approximately 10:20 a.m. on July 29, 1983, Defendant Khamchana Matsakoun was learning to park a 1982 Volkswagen Quantum Stationwagon that she owned. Defendant Matsakoun was operating the vehicle pursuant to temporary instruction permit No. 3960626.

"At the same time, Defendant Thon Boupha was instructing Ms. Matsakoun in the operation of the 1982 Quantum Stationwagon. Mr. Boupha was standing on the street or sidewalk, outside of the Quantum Stationwagon.

"IV.

"Defendant Matsakoun backed the Quantum Stationwagon up over a curb, across the sidewalk striking Ou Fou Saechao, and smashing Ou Fou Saechao's head and body against the brick wall of an apartment building, killing the child instantly.

"V.

"Kae Fou Saechao tried to grab Ou Fou Saechao's tricycle and pull him out of the way of the oncoming car, but was struck, bruised, contused and physically injured by the car and knocked away from his brother. Kae Fou Saechao, Sou Fou Saechao and Farm Fou Saechao all witnessed the death of their brother and observed the body and scene immediately after the accident."

The complaint alleges that the three children who witnessed the accident all suffered "extreme emotional trauma, which continues presently and which will continue into the future. The trauma has manifested itself in several ways, including nausea, headaches, physical trauma and nightmares." The three claims for relief sought damages for defendants' "negligent infliction of emotional distress." The first claim, that of Kae Fou Saechao, also sought damages for his physical injuries.

The trial court dismissed the second and third claims, those of Sou Fou and Farm Fou. It denied defendants' motion to dismiss the first claim, Kae Fou's, relying apparently, on the so-called "impact rule," which provides that only a person who suffers an impact from the same force which injures a third person may recover for emotional distress due to witnessing the injury to the third person. See Prosser and Keeton, Law of Torts 365, § 54 (5th ed 1984). Plaintiffs contend that the "impact rule" is not the law of Oregon and that we should adopt and apply one of several rules which allow recovery in a broader range of cases. We shall discuss each of those theories. Defendants contend that the trial court properly applied the impact rule to dismiss the two claims.

Defendants claim that Fehely v. Senders, 170 Or. 457, 135 P.2d 283 (1943), holds that, in order for a person to recover for emotional distress, she must have suffered an antecedent physical injury. In that case, the plaintiff was a pregnant woman who was injured in a car accident. The issue was whether the plaintiff's apprehension that her child might be born dead or deformed as a result of an injury to her person was an element of damages. 170 Or. at 460, 135 P.2d 283. The opinion first states the general rule that, when a person is injured physically, she may also recover for mental distress and anguish which naturally and directly flow from the physical injury. 170 Or. at 461, 135 P.2d 283. The rest of the opinion deals with what types of consequential mental suffering are properly compensable and concludes that any emotional distress which is not "abnormal or unreasonable" is compensable. 170 Or. at 475, 135 P.2d 283. Fehely holds only that the plaintiff could recover for mental anguish resulting from her own physical injury, but it does not answer the question here of whether a person must suffer a direct injury before that person can recover damages for emotional distress.

Several Oregon cases have permitted recovery for emotional distress that was not the result of a physical injury. See, e.g., Mooney v. Johnson Cattle, 291 Or. 709, 634 P.2d 1333 (1981) (intentional interference with a contractual relationship); Turman v. Central Billing Bureau, 279 Or. 443, 568 P.2d 1382 (1977) (intentional infliction of emotional distress); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977) (negligence in returning passports to mother); Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (1974) (conversion of a dog); Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 495 P.2d 1193 (1972) (negligent listing in telephone directory, considered to be a nuisance); Douglas v. Humble Oil, 251 Or. 310, 445 P.2d 590 (1968) (trespass); Hovis v. City of Burns, 243 Or. 607, 415 P.2d 29 (1966) (unauthorized disinterment of spouse); Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438 (1941) (invasion of privacy). In each of those cases, however, the plaintiff was the direct victim of the tortious conduct, although no physical injury was involved. In Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982), the court specifically stated that the fact that an injury is solely emotional or psychic is no reason to deny damages.

The decision as to whether the pleadings can support recovery in this case must be made as a matter of policy. In Meyer v. 4-D Insulation Co., Inc., 60 Or.App. 70, 652 P.2d 852 (1982), we denied recovery for emotional distress caused by negligent damage to the plaintiff's property. In that opinion we categorized the cases cited above and others in an attempt to distill a principle indicating when damages for emotional distress are appropriate. Noting that the cases do not form a precise pattern, we described four categories in which recovery is allowed: intentional torts, private nuisance, invasion of privacy and miscellaneous cases. 60 Or.App. at 73-74, 652 P.2d 852. We noted a tendency of the Supreme Court to grant recovery by species of case as a matter of policy and that the categories tended to be defined on an ad hoc basis, not on the basis of simple foreseeability. Likewise, in Flowers v. Bank of America, 67 Or.App. 791, 794, 679 P.2d 1385, rev. den. 297 Or. 601, 687 P.2d 795 (1984), we examined the defendants' conduct to determine

" * * * whether that careless invasion is, as a matter of policy, of sufficient importance to merit protection by an award of damages if the only result is emotional distress. * * * "

The negligence asserted in Flowers was the defendant's notifying a restaurant that the plaintiff's credit card was cancelled, which caused the restaurant to refuse to honor the card. In both Meyer and Flowers we held that the nature of the defendants' conduct and the plaintiffs' emotional upset did not warrant an extension of liability.

Although in Meyer we stated that cases in the "miscellaneous" category appear to recognize liability on an ad hoc basis, there is a common thread to those cases. In each the court determined, as a matter of law, that the defendant owed the plaintiff a duty of care and that the kind of harm which resulted was reasonably foreseeable. Considering the cases in which the Supreme Court has awarded damages solely for emotional distress, we think that serious emotional injuries sustained as a result of observing a sibling killed can be compensable under some circumstances. Under the rationale of Fehely v. Sanders, supra, it seems clear that the trial judge correctly ruled that Kae Fou, who was physically injured, has stated a claim that would allow his recovery of damages for emotional distress. The question is whether Farm Fou and Sou Fou, who suffered no direct injury, have a claim for such damages.

In Norwest v. Presbyterian Intercommunity Hosp., supra, the Supreme Court rejected the plaintiff's claim for loss of "parental consortium" due to the defendants' negligent incapacitation of the plaintiff's mother. The court treated the claim for loss of society and companionship as one for tortious injury to a family relationship and looked to legislative history to find support for such a cause of action. The court held that legislative policy did not support its creating an "exception from the limits on negligence liability for one person's loss from injury to another." 293 Or. at 565, 652 P.2d 318. The court in Norwest assumed that the plaintiff's injury could well prove to be real, severe and reasonably foreseeable by the defendants; nevertheless, the court ruled:

" * * * The obstacle to plaintiff's action is that ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person's consequential loss has a legal source besides its foreseeability." 293 Or....