Straub v. Fisher and Paykel Health Care

• Decision Date: 02 November 1999
• Docket Number: No. 980081.,980081.
• Citation: 990 P.2d 384,1999 UT 102
• Parties: Tenne STRAUB f.k.a. Tenne Vanderwood, Plaintiff and Appellant, v. FISHER AND PAYKEL HEALTH CARE, a corporation, Defendant and Appellee.
• Court: Utah Supreme Court

990 P.2d 384

1999 UT 102

Tenne STRAUB f.k.a. Tenne Vanderwood, Plaintiff and Appellant, v. FISHER AND PAYKEL HEALTH CARE, a corporation, Defendant and Appellee.

No. 980081.

Supreme Court of Utah.

November 2, 1999.

Thomas R. Blonquist, Salt Lake City, for plaintiff Karra J. Porter.

William J. Hansen, Salt Lake City, for defendant.

STEWART, Justice:

¶ 1 Plaintiff Tenne Straub brought suit against defendant Fisher and Paykel Health Care claiming negligence, strict liability, and breach of warranty. On defendant's motion for summary judgment, the trial court ruled against plaintiff on all claims. Plaintiff appeals.

I. FACTS

¶ 2 Straub is a licensed respiratory therapist who was employed at McKay Dee hospital in Ogden, Utah. In December of 1993, during the course of her employment, she provided treatment for Emma Padilla Boney. Straub administered an open or "blow by" respiratory system, using a ventilator that generated and regulated the flow of oxygen that Mrs. Boney inhaled. Mrs. Boney exhaled on her own power. In a "blow by" system, an oxygen/air mixture is delivered to the patient through a long, flexible delivery tube, one end of which is attached to the ventilator. As the delivery tube reaches the patient, it is connected to one prong of a "Y" attachment, through which the oxygen/air mixture is delivered directly to the patient. The other prong of the "Y" attachment provides an opening enabling the patient to exhale.

¶ 3 Defendant Fisher and Paykel manufactured a humidifier that warmed and humidified the oxygen/air mixture delivered to Mrs. Boney. The humidifier consisted of a small plastic chamber that rested on top of a heating unit. The oxygen/air mixture supplied by the ventilator was delivered to the humidifier through a tube connected to an opening in the plastic chamber where the mixture was warmed and humidified. It then exited the chamber through another tube that delivered the warmed mixture to the patient through the "Y" attachment. The humidifier did not change the pressure or rate of flow of the oxygen/air mixture. Fisher and Paykel manufactured only the humidifier, and did not manufacture, distribute, or sell the ventilator, the delivery tubes, or the "Y" attachment.

¶ 4 On December 15, 1993, Straub disconnected the delivery tube from the hospital ventilator and connected it to a portable oxygen source so that Mrs. Boney could move around the room. Mrs. Boney experienced difficulty breathing and began to gurgle from lung secretions. To suction Mrs. Boney's secretions, Straub disconnected the delivery tube from the portable oxygen source and reconnected it to the humidifier and hospital ventilator, but failed to install the "Y" attachment, without which Mrs. Boney could not exhale. As a result, Mrs. Boney suffered barotrauma, respiratory and cardiac arrest, and died. Straub claims that as a result of witnessing Mrs. Boney's death, she suffered severe emotional distress that caused termination of her employment, dissolution of her marriage, and her incarceration after attempting to shoot her husband.

¶ 5 Straub sued Fisher and Paykel, on the ground that the humidifier was defective. Straub alleged claims based on negligence, breach of implied warranty, and strict liability. The district court granted Fisher and Paykel's motion for summary judgment. On the strict liability and breach of warranty claims, the court ruled that Straub had not suffered physical harm, and was not an ultimate user of the product alleged to be defective, as required by section 402A of the Restatement (Second) of Torts. On the negligence claim, the court ruled that Straub was never in the "zone of danger," and therefore failed to state a claim for negligent infliction of emotional distress.

¶ 6 Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c). See Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998)

. We may affirm a summary judgment on any ground available to the trial court, even if not relied on below. See Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993). We review for correctness. See Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238 (Utah 1998).

II. PLAINTIFF'S CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

¶ 7 This case presents the question of whether a plaintiff can allege a claim for negligent infliction of emotional distress based on her witnessing an injury to a third person. Here the plaintiff operated the instrumentality that caused injury to the third person but was not personally threatened with physical injury. Straub argues Fisher and Paykel negligently failed to include a pressure release valve in the plastic chamber of its humidifier, which would allow patients to exhale even if the "Y" attachment were not connected to the delivery tube. She contends this was a design defect that proximately caused the emotional distress she suffered from watching Mrs. Boney suffocate and die. Fisher and Paykel argues that Straub cannot prevail on this claim because she was never in danger of physical injury.

¶ 8 This Court first recognized a cause of action for negligent infliction of emotional distress in Johnson v. Rogers, 763 P.2d 771, 785 (Utah 1988). In Johnson, a father and son were waiting at an intersection when a drunk driver negligently jumped the curb, killing the son and injuring the father. The Court allowed the father to maintain a cause of action for negligent infliction of emotional distress. In so doing, it adopted the zone of danger test from section 313 of the Restatement (Second) of Torts (1965). The Restatement provides that when an actor unintentionally causes emotional distress to another, the actor is subject to liability when the actor "should have realized that his conduct involved an unreasonable risk of causing the distress," and that the distress "might result in illness or bodily harm." Id. § 313(1). Section 313(2) provides, however, that there shall be no recovery where emotional distress arises "solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other." In other words, unless the plaintiff herself has been placed in actual physical peril, she may not recover for negligent infliction of emotional distress suffered while witnessing injury to a third party.

¶ 9 In Hansen v. Sea Ray Boats, Inc., 830 P.2d 236 (Utah 1992), we framed the zone of danger analysis as a distinction between direct victims, those who are in actual physical peril, and bystanders, those who may witness or be affected by the actions, but who themselves suffer no actual physical peril. In Hansen, we refused to extend recovery for emotional distress outside the zone of danger created by a defendant's negligence, even though the plaintiff reasonably believed she was in danger of injury. While on a boating outing, the plaintiff in Hansen witnessed several people near the boat receive electrical shock, including her son. See id. at 238. Although the plaintiff was never actually in danger of harm, "she experienced a general `global' kind of fear" for her own safety. Id. We held that a plaintiff who reasonably believes that she is threatened with bodily harm cannot bring a claim for negligent infliction of emotional distress if the threat of bodily harm is not real in fact. See id. at 243.

¶ 10 Even if Straub could show that Fisher and Paykel's negligence caused Mrs. Boney's death, Straub's claim fails as a matter of law because she was never personally at risk of physical injury when she witnessed the death of her patient. Straub argues that she should nonetheless recover for her emotional distress on the basis that she was not a mere bystander but a direct victim of Fisher and Paykel's negligence. She claims that because she operated the allegedly defective humidifier that caused Mrs. Boney's death, it was reasonably foreseeable that she would suffer emotional distress when the humidifier caused injury to someone under her care. Straub relies on the following cases from other jurisdictions to support her view that a user or operator of a defective product causing injury to another has a negligence claim for emotional distress suffered after witnessing the injury: Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Shepard v. Superior Court, 76 Cal.App.3d 16, 142 Cal.Rptr. 612 (1977); Walker v. Clark Equip. Co., 320 N.W.2d 561 (Iowa 1982); Molien v. Kaiser Found. Hosps., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980); Kately v. Wilkinson, 148 Cal.App.3d 576, 195 Cal.Rptr. 902 (1983).

¶ 11 These cases are unpersuasive. Dillon expanded the zone of danger analysis to allow a bystander who witnesses injury negligently caused to another to recover for emotional distress if three conditions are present: (1) the plaintiff is located near the scene of the accident; (2) the emotional shock results from "the sensory and contemporaneous observance of the accident"; and (3) the plaintiff and victim are closely related. See Dillon, 69 Cal.Rptr. 72,

441 P.2d at 920-21. Shepard and Walker apply the Dillon rule. See Shepard, 142 Cal.Rptr. at 614; Walker, 320 N.W.2d at 562-63. This Court, however, specifically rejected Dillon as having an "artificial and unworkable" analytical framework based on the "fortuitous circumstances" of the incident and a breach of duty to someone other than the plaintiff. Hansen, 830 P.2d at 242. We concluded that vicarious recovery by a Dillon bystander is "too attenuated from the principle of duty to allow for reasonable limitations on recovery." Id. Hansen precludes Straub from relying on Dillon and its progeny to support her argument that she is entitled to recover for her emotional distress even though Fisher and Paykel's negligence did not place her at risk of injury.

¶ 12 Straub relies on Molien and Kately to argue that she...