Versland v. Caron Transport

• Decision Date: 21 October 1983
• Docket Number: No. 82-211,82-211
• Citation: 40 St.Rep. 1681,206 Mont. 313,671 P.2d 583
• Parties: Sharon K. VERSLAND, Individually, as Personal Representative of the Estate of Bert Martin Versland, Deceased, et al., Plaintiff, v. CARON TRANSPORT, Defendant.
• Court: Montana Supreme Court

Page 583

671 P.2d 583

206 Mont. 313

Sharon K. VERSLAND, Individually, as Personal Representative of the Estate of Bert Martin Versland, Deceased et al., Plaintiff, v. CARON TRANSPORT, Defendant.

No. 82-211.

Supreme Court of Montana.

Submitted May 31, 1983.

Decided Oct. 21, 1983.

Richard W. Anderson, argued, Anderson, Edwards & Molloy, Donald Molloy, argued, Billings, for plaintiff.

Herbert I. Pierce, III, argued, Crowley Law Firm, Billings, for defendant.

HASWELL, Chief Justice.

The United States District Court for the District of Montana has certified this action to this Court for a determination of three issues.

The following facts were stipulated for certification. On October 7, 1980, Bert Martin Versland was driving a New Holland bale wagon in a northerly direction on Montana Highway 191. Near his home, approximately eighteen miles north of Big Timber, a collision occurred between the bale wagon and the defendant's semi-truck driven by Richard Martineau. Bert Versland was killed in the collision. Sharon Versland, the plaintiff, witnessed part of the collision and then saw her husband's body at the scene.

At the time of his death, Bert Versland was married to Sharon Versland. He was the stepfather of Michelle Louise Jones and Laura Marie Korpela, Sharon Versland's minor children by prior marriages. The children were not adopted by the decedent but lived with him and were dependent upon him for support.

On November 25, 1980, Sharon Versland filed a complaint against defendant in United States District Court for the District of Montana. In the complaint and her more definite statement, she seeks relief in her own behalf, as personal representative of her husband's estate, and as custodian and next friend of the two minor children. In addition to a claim for her husband's wrongful death, Versland seeks to recover for the shock, fright, mental pain and suffering which she claims were caused by seeing part of the collision and then seeing her husband's body at the scene of the accident.

The defendant, Caron Transport, filed a motion seeking to dismiss Sharon Versland's claim for emotional shock and mental anguish on the ground that it fails to state a claim upon which relief can be granted. The defendant also challenges the right of the nonadopted minor stepchildren of Bert Versland to state a claim for the loss of consortium and support of Bert Versland.

The parties agree three issues materially affect the case and therefore the United States District Court for the District of Montana has requested this Court to accept jurisdiction and decide these issues of state law:

1. Whether under Montana law a spouse may recover for the emotional trauma caused by witnessing a collision which causes the infliction of death or injury of the other spouse;

2. Whether under Montana law a spouse may recover for the negligent infliction of emotional trauma caused by witnessing a collision which causes the infliction of death or injury to the other spouse; and

3. Whether under Montana law the nonadopted minor stepchildren of a decedent may state a claim for the deprivation of the decedent's consortium and support when they had been received into decedent's family and were supported by the decedent as if he were the natural or adoptive father.

Counsel for the plaintiff does not address issue number one in either the brief or in oral argument. Counsel for defendant defines the first issue to mean that plaintiff is asking this Court to hold that there is strict liability in infliction of emotional distress cases. We are somewhat at a loss as to the precise meaning of the first issue; however, assuming defendant's interpretation is correct, this Court can find no rational basis, no overriding interest and no existing authority for extending a blanket of strict liability for the infliction of such emotional distress.

Issue No. 2 asks whether a spouse may recover for the negligent infliction of emotional trauma caused by witnessing a collision which causes the infliction of death or injury to the other spouse. This issue has been addressed by many courts in many jurisdictions. Early courts denied recovery of damages for emotional trauma if there was no physical impact with the plaintiff. Mitchell v. Rochester Railway Co. (1896), 151 N.Y. 107, 45 N.E. 354. Later the impact rule was replaced with the "zone of danger" rule. Under this rule, a plaintiff could recover if he were located within the zone of defendant's negligent conduct and feared for his own safety. Amaya v. Home Ice, Fuel & Supply Co. (1963), 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513.

In Dillon v. Legg (1968), 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the California Supreme Court abandoned the zone of danger rule and allowed recovery for emotional trauma suffered by a mother who witnessed her daughter killed by a motorist as she crossed a street. Although the mother was not in physical danger, the court held it reasonably foreseeable that negligent operation of a motor vehicle that causes injury to a child will cause mental distress to a parent who witnesses the accident.

The Dillon court stated:

"Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue..." Dillon, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920.

In establishing guidelines, the California Supreme Court stated:

"... [in] determining ... whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following:

"(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." Dillon, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920.

Since Dillon, many courts have rejected the prior limitation of zone-of-physical-danger and instead have created a zone-of-psychic-danger limitation which is reflected in the first two elements of the Dillon test. The New York Court of Appeals recognized in 1961 that using the impact rule to bar all claims of psychic trauma absent actual physical impact was arbitrary. Battalla v. State (1961), 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729. The court chose instead to rely upon competent medical proof and the jury's historic ability to weed out fraudulent claims. Battalla, 10 N.Y.2d at 242, 219 N.Y.S.2d at 38-39, 176 N.E.2d at 731-732. In another New York case, Lafferty v. Manhasset Medical Center Hospital (1980), 103 Misc.2d 98, 425 N.Y.S.2d 244, a woman was allowed recovery for emotional distress caused by witnessing the death of her mother-in-law resulting from the transfusion of mismatched blood. The court held that since the plaintiff's presence was actually known to the hospital, the only reasonable circumscription of the extent of the duty owed to her was that of a reasonable zone of danger within which psychic trauma could be inflicted. As a result of this reasonably foreseeable danger, a duty arose on the part of the hospital owing directly to the daughter-in-law.

In 1979, the Pennsylvania Supreme Court held that where a mother witnessed a negligently driven automobile strike and kill her minor daughter, while not being in any physical danger herself, the mother could recover for her psychic injuries under the theory that such injuries would be reasonably foreseeable to any tortfeasor. Sinn v. Burd (1979), 486 Pa. 146, 404 A.2d 672.

In Barnhill v. Davis (Iowa 1981), 300 N.W.2d 104, the Iowa Supreme Court considered the traditional view, which conditioned recovery on the bystander's presence in the zone of danger but decided that the better view permitted recovery regardless of whether the plaintiff was in the zone of physical danger. Barnhill, 300 N.W.2d at 107.

The Dillon requirement of presence at the scene has been expanded in some jurisdictions, including California where a mother was allowed to recover when she witnessed her young son being pulled from defendant's pool and participated in the attempt to revive him. The child died three days later. The court concluded that, as a matter of law, it could not say that the injuries resulting from the pool owners' negligence were not still being experienced at the time the mother arrived on the scene. Nazaroff v. Superior Court in and for Cty. of Santa Cruz (1978), 80 Cal.App.3d 553, 145 Cal.Rptr. 657. See also, Landreth v. Reed (Tex.Civ.App.1978), 570 S.W.2d 486; Grimsby v. Samson (1975), 85 Wash.2d 52, 530 P.2d 291; Archibald v. Braverman (1969), 275 Cal.App.2d 253, 79 Cal.Rptr. 723.

The second Dillon guideline is "whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence." Dillon, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920.

This requirement of actual observance of the event has been expanded since Dillon to include sensory perception of the accident and not just strict observance of the event. Bliss v. Allentown Public Library (E.D.Pa.1980), 497...