Sullivan v. Boston Gas Co.

• Decision Date: 10 September 1992
• Citation: 605 N.E.2d 805,414 Mass. 129
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Paul P. SULLIVAN & another 1 v. BOSTON GAS COMPANY.

Page 805

605 N.E.2d 805

414 Mass. 129

Paul P. SULLIVAN & another ¹ v. BOSTON GAS COMPANY.

Supreme Judicial Court of Massachusetts Suffolk.

Sept. 10, 1992.

Decided Jan. 12, 1993.

Edward Fegreus, Boston, for plaintiffs.

John B. Johnson, Boston (Patricia A. Geran, with him), for defendant.

LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

On October 2, 1990, a natural gas explosion destroyed the house of Paul P. Sullivan and Mary J. McDonald. Both Sullivan and McDonald looked on from across the street as their home burned to the ground. On January 8, 1991, Sullivan and McDonald filed the present case in the Superior Court. Their complaint alleged that the negligence of the defendant, Boston Gas Company (Boston Gas), caused the explosion. The first count of the complaint requested damages for lost property, lost wages, and for other financial expenses related to the explosion. In the second and third counts, Sullivan and McDonald sought compensation for the emotional distress which each claimed to have suffered as a result of the explosion.

Boston Gas moved for partial summary judgment on the emotional distress counts. Boston Gas argued that Sullivan and McDonald did not demonstrate compensable claims for emotional distress, see Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). Specifically, based on the record, Boston Gas asserted that the plaintiffs could not produce sufficient evidence of "physical harm manifested by objective symptomatology" to corroborate their claims of mental distress. Id. at 557, 437 N.E.2d 171.

Before ruling on Boston Gas's motion for partial summary judgment, the judge below conducted a proceeding which the parties have described as a "mini-trial." ² This proceeding purported to determine whether or not McDonald suffered from diarrhea during the year following the explosion. The judge concluded that McDonald did suffer from diarrhea during this time period. He ruled that diarrhea is a "physical, objective symptom" within the meaning of the Payton rule, and denied Boston Gas's motion for partial summary judgment with respect to McDonald.

The judge, however, granted Boston Gas's motion with respect to Sullivan. He ruled that Sullivan introduced only "emotional, or mental, or subjective symptoms," which did not satisfy the Payton requirement of physical harm. The judge then proceeded to report to the Appeals Court the issue whether the physical harm rule set out in Payton had been applied correctly. See Mass.R.Civ.P. 64, 365 Mass. 831 (1974). On the plaintiffs' application, we granted direct appellate review. We now affirm the judge's decision with respect to McDonald and reverse his decision with respect to Sullivan.

The record as to Sullivan's claim of physical harm included a medical affidavit signed by Dr. Walter H. Caskey of Faulkner Hospital. Dr. Caskey stated that Sullivan had suffered from tension headaches related to the emotional stress caused by the explosion. Dr. Caskey also noted muscle tenderness in the back of Sullivan's head. In addition to this affidavit, Sullivan produced a record of a psychological consultation during which he complained of concentration and reading problems. Finally, Sullivan stated in his responses to interrogatories and in his deposition that he had suffered from sleeplessness, gastrointestinal distress, upset stomach, nightmares, depression, feelings of despair, difficulty in driving and working, and an over-all "lousy" feeling allegedly resulting from the explosion.

McDonald, for her part, submitted an affidavit signed by Dr. Bessel A. van der Kolk, the director of the Trauma Clinic. ³ Dr. van der Kolk stated that McDonald had been treated for posttraumatic stress disorder at the Trauma Clinic. Dr. van der Kolk also stated that, prior to being admitted as a patient to the clinic, McDonald had undergone a test designed to measure signs and symptoms of posttraumatic stress disorder and met the diagnostic criteria for this illness. Finally, Dr. van der Kolk reported that McDonald suffered from severe physical symptoms of posttraumatic stress disorder, which sometimes occurred as often as once or twice a week. Although Dr. van der Kolk did not specify the nature of these symptoms, McDonald's answers to the evaluation test revealed that she had complained of diarrhea and heart palpitation. In addition to the medical evidence of her treatment at the Trauma Clinic, McDonald asserted in her responses to interrogatories and in her deposition that she had experienced sleeplessness, weeping, depression, and feelings of despair, allegedly as a result of witnessing the destruction of her house.

In Payton, we held that, in order to recover for negligently inflicted emotional distress, a plaintiff must prove: "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case." Id. at 557, 437 N.E.2d 171. ⁴ We added the physical harm requirement to the traditional elements of negligence for several reasons. First, we feared that allowing recovery for mental harm alone might result in a flood of fraudulent claims. Id. at 555, 437 N.E.2d 171. Second, we expressed concern that even honest plaintiffs erroneously might convince themselves that they suffer from emotional distress as a result of the negligence of others, thereby compounding the problem of fraudulent lawsuits. Id. at 547, 437 N.E.2d 171. Finally, we reasoned that the unintentional nature of the defendant's tortious conduct justified the imposition of an additional legal burden on the plaintiffs. Id. at 553-557, 437 N.E.2d 171. Cf. Agis v. Howard Johnson Co., 371 Mass. 140, 144, 355 N.E.2d 315 (1976) (no proof of physical harm required for recklessly or intentionally inflicted emotional distress).

We based our decision in Payton on an extensive review of the historical evolution of this area of the law which we need not repeat here. It suffices to say that we described the various limitations on recovery for mental harm which the courts traditionally have imposed, and decided to retain the physical harm rule. Payton, supra at 557, 437 N.E.2d 171. The plaintiffs in the present case suggest that we should overrule Payton and allow the tort of negligent infliction of emotional distress to operate without artificial restrictions. The plaintiffs find support for this suggestion in the recent decisions that have eliminated the physical harm rule on the ground that, like the other traditional limitations on recovery for mental harm, this rule arbitrarily infringes upon the right of plaintiffs to obtain redress for the invasion of a recognized legal interest. See Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433, 437 (Me.1982); Bass v. Nooney Co., 646 S.W.2d 765, 772-773 (Mo.1983); St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987); Gates v. Richardson, 719 P.2d 193, 200 (Wyo.1986). Further, the plaintiffs argue that the States which abandoned the physical harm rule have not witnessed abnormal increases in litigation. See, e.g., James v. Lieb, 221 Neb. 47, 59, 375 N.W.2d 109 (1985) (noting that experience shows that courts have not been overwhelmed with litigation in this field). ⁵

We note the criticism leveled against the rule which we adopted in Payton. We also note that the historical trend has led courts to weigh the concern for the unjust denial of claims more heavily than the fear of fraudulent actions. However, we agree with the Supreme Court of Alabama that "broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand." Alabama Great S.R.R. v. Jackson, 587 So.2d 959, 963 (Ala.1991), quoting Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 568-570, 107 S.Ct. 1410, 1417-1418, 94 L.Ed.2d 563 (1987) (Federal Employers' Liability Act). Sound principles of common law evolve out of the interaction of the infinite variety of new patterns of human activity with principles crafted in response to already-experienced situations. A careful review of the interpretation of the physical harm rule in other jurisdictions leads us to believe that we may refine this rule so as to achieve a just result in this case and to strike a proper balance between the fear of fraudulent claims and the danger of shutting the doors of the courthouse to worthy plaintiffs.

The courts that have applied the physical harm rule to particular symptoms have confronted serious definitional difficulties. Physicians themselves often cannot distinguish between the mental and the physical aspects of an emotional disturbance. Modern medicine shows that all emotional disorders have physical ramifications, while all physical illnesses have emotional aspects. See Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237, 1241 & n. 24 (1971), and authorities cited. Judges, then, cannot sit as "super doctors" and cannot classify ailments along physical versus mental lines while the progress in medical sciences inextricably links these two realms of human physiology. On a record such as in this case, such matters are better left to a jury, to be decided on expert medical testimony. Indeed, the complexity of the medical understanding of tension headaches would preclude us from concluding on appeal that they are purely physical or mental. See Merck Manual of Diagnosis & Therapy 1351-1355 (15th ed. 1987); Mosby's Medical Dictionary 1154 (3d ed. 1990) (listing both physical and mental causes for headaches such as the contraction of blood vessel walls, overwork, and emotional strain). ⁶

Courts have attempted to extricate themselves from this definitional quagmire by resorting to evidentiary concepts designed to provide guidance to fact finders evaluating a plaintiff's symptoms. Restatement (Second) of...