Savard v. Cody Chevrolet, Inc., 1963

• Decision Date: 06 June 1967
• Docket Number: No. 1963,1963
• Citation: 126 Vt. 405,234 A.2d 656
• Court: Vermont Supreme Court
• Parties: Lyse A. SAVARD, b. n. f. Ludger Savard v. CODY CHEVROLET, INC.

Page 656

234 A.2d 656

126 Vt. 405

Lyse A. SAVARD, b. n. f. Ludger Savard v. CODY CHEVROLET, INC.

No. 1963.

Supreme Court of Vermont.

June 6, 1967.

Motion for Reargument Denied Oct. 3, 1967.

Davis, Martin & Free, Barre, for plaintiff.

Theriault & Joslin, Montpelier, with John A. Burgess, Montpelier, on the brief for defendant.

Before, HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

The action is in tort. The appeal here was taken by the defendant after verdict and judgment for the plaintiff in the trial below in the Washington County Court. The defendant has presented four questions for our determination in its brief and argument.

The most important question presented to us by the defendant arises because of the denial by the trial court of its motion that the jury be directed to return a defendant's verdict, and that the testimony of Dr. Forrest, a psychiatrist, as to emotional and psychological injuries suffered by the plaintiff, be struck from the case.

The undisputed evidence is that a dump truck, owned by te defendant and driven by its agent, became out of control while travelling down a steep hill in the City of Barre and crashed into a house owned by the parents of the infant plaintiff. The plaintiff, and her parents, were inside the house when it was struck by the truck. The impact of the collision caused severe damage to the house, with consequent loud noise, loss of light, and with a showering of light debris on the person of the plaintiff. However, there was no impact between the truck of the defendant and the plaintiff, nor did she receive any physical injury at the time.

Plaintiff testified that as a result of the accident she suffered a severe nervous shock, emotional distress, sleeplessness and loss of appetite which resulted in a loss of weight and having to undergo medical treatment and care for a period of some months. Her testimony was corroborated by that of her parents.

Within a few days after the accident, the plaintiff, then 16 years of age, consulted with her family physician, Dr. Ernest Reynolds. He testified that she complained of being excessively nervous, under great emotional distress, troubled by nightmares and sleeplessness, faintness and periods of trembling, as well as loss of appetite and of weight. Dr Reynolds, after seeing his patient on a few visits, referred her to Dr. P. L. R. Forrest, a psychiatrist.

The plaintiff was treated by Dr. Forrest for approximately two years. It was his testimony that the plaintiff was suffering from a traumatic psychoneurosis, or a severe mental emotional trauma, and that this condition was the result of the severe traumatic experience the plaintiff was subjected to when the truck was in collision with the house.

The defendant contends that the testimony of Dr. Forrest should have been from the record, because the emotional damage suffered by the plaintiff was not caused by, or causally related to, physical injury. The defendant urges this Court to rule that a plaintiff may recover for negligently caused emotional disturbance only if: (1) the plaintiff is within the area of foreseeable harm; and (2) the emotional damage results from a physical injury received by the plaintiff. Defendant cites the case of Nichols v. Central Vermont Rwy., 94 Vt. 14, 109, A. 905, 12 A.L.R. 333, as authority for this position.

In the Nichols case, the action was brought by a mother seeking damages for mental distress by reason of her shock at viewing the spectacle of her child's coffin about to be run over by a railroad train. It is distinguishable from the case at hand in that her mental distress was not caused as a result of any apprehension for her own safety as a result of negligence of another, as is the evidence in the case before us, but by fear of damage to the body of her child. Plaintiff in that case was not within any area of foreseeable harm to herself, as was the plaintiff here. In the case of Thompson v. Green Mountain Power Corp., 120 Vt. 478, 144 A.2d 786, we held that physical injury caused to poultry by fright alone, resulting from an explosion, negligently created by the defendant, was compensable. In Thompson, this Court repudiated the doctrine that damage without physical contact is not compensable. It was not directly faced with the question here presented of whether recovery may be had for emotional damages received by a person as a result of fright caused by the negligent act of another, but without accompanying physical injury.

However, Holden J., (now Chief Justice) made the following statement:

'The doctrine that damage without physical trauma or impact is not compensable has been often repudiated in both English and American jurisdictions. See Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402, 405; Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540, 543; 2 Harper & James, The Law of Torts, § 18.4, p. 1034. The Supreme Court of New hampshire observed that if a sudden explosion by its noise makes one deaf, or by its light makes one blind, there may be a recovery. If, instead the shock should be so frightening as to produce impairment of health, liability should not be denied for reasons of expediency.'

The thrust of the defendant's contentions here is that liability should be denied against this defendant because there was no bodily injury received by the plaintiff from the negligent act of the defendant. But in Thompson it was 'impairment of health' which this Court stated would impose liability and not bodily injury alone.

In Bowman v. Williams, 164 Md. 397, 165 A. 182, 184, the Maryland Court of Appeals held that a plaintiff could sustain an action for damages for nervous shock or injury caused without physical impact, by fright arising directly from defendant's negligent act or omission resulting in some clearly apparent and substantial physical injury as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological or mental state.

The reasoning of the defendant is, if we understand it correctly, that if the plaintiff before us had sustained a cut, bruise or other injury of a traumatic nature from the debris with which she was showered when the truck of the defendant impacted with the house in which she was situated, she would be able to sustain her action for damages for her emotional sufferings. The defendant agrees that the plaintiff need not show physical impact to bring an action for damages, but must show that the emotional damage followed some physical injury. Mental or emotional suffering are too vague and uncertain of proof to be an element of damage in the absence of physical injury, says the defendant.

'From the viewpoint of analogy, allowance for mental pain, and for injury to mind and nerve as well as body, is given as items of damage in all cases of liability for personal injury where there is impact. It would seem practically as easy to pretend them and as difficult to disprove them in such cases as in cases where there is no impact and fright is the intervening agency of transmittal. When neuresthenia is claimed as a result of a bodily injury, the connection between the injury and the disease and extent and severity of the disease are no less uncertain and subject to objective tests than when fright takes the place of bodily impact.' Chiuchiolo v. New England Wholesale Tailors, supra, 150 A. p. 543.

The Supreme Court of Errors of Connecticut, in Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402, had for consideration the question whether a plaintiff could recover for fright and shock caused by the negligence of a defendant where there was an absence of injury of a traumatic nature. The trial court had instructed the jury that there could be no recovery of damages due to fright alone unaccompanied by physical injury. Holding this part of the charge to have been in error, this statement appears in the opinion:

'It is, then, well within the logic of the law that where results which are regarded as proper elements of recovery as a consequence of physical injury are caused by fright or nervous shock due to negligence, recovery should be permitted. Undoubtedly, one, if not the principal, reason why recovery has been denied in cases of this nature is the feeling that fright and similar emotional disturbances are subjective states of the mind, difficult properly to evaluate and of such a nature that proof by the party claiming the injury is too easy and disproof by the party sought to be charged is too difficult, to make it safe as a matter of policy for the law to deal with them, and that, therefore, to permit recovery in such cases would permit a wide field for fictitious claims with which the law cannot satisfactorily deal.

The refusal to allow a recovery in such a case is not rested on a 'logical deduction from the general principles of liability in tort, but (is) a limitation of those principles on purely practical grounds.' The real basis for the requirement that there shall be a contemporaneous bodily injury or battery is that this guarantees the reality of the damage claimed. But that reality may be proved no less by injuries subsequent to the occurrence of the...