Whetham v. Bismarck Hospital, 8794

• Citation: 197 N.W.2d 678
• Decision Date: 01 May 1972
• Docket Number: No. 8794,8794
• Parties: Martin WHETHAM and Dixie Whetham, Plaintiffs, and Dixie Whetham, Plaintiff and Appellant, v. BISMARCK HOSPITAL, a corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 678

197 N.W.2d 678

Martin WHETHAM and Dixie Whetham, Plaintiffs and Dixie Whetham, Plaintiff and Appellant, v. BISMARCK HOSPITAL, a corporation, Defendant and Respondent.

Civ. No. 8794.

Supreme Court of North Dakota.

May 1, 1972.

Syllabus by the Court

1. For the reasons stated in the opinion, the motion to dismiss the appeal is denied.

2. A plaintiff witnessing injury caused by defendant's negligence toward a third person may recover damages only if the negligent act also threatened physical harm to plaintiff or placed plaintiff within zone of danger.

Conmy, Conmy, Rosenberg, Lucas & Olson, Bismarck, for plaintiff and appellant.

Zuger, Bucklin & Zuger, Bismarck, for defendant and respondent.

ERICKSTAD, Judge.

Martin and Dixie Whetham, the parents of Tami Lynn, a child born to them in the Bismarck Hospital on the 28th day of July 1970, commenced an action to recover from the Bismarck Hospital a judgment of $100,000. They assert that shortly after Dixie's admission to the Bismarck Hospital, Tami Lynn was born, and that in the process of bringing Tami Lynn to Dixie's hospital bed an employee of the Hospital, in Dixie's presence, dropped her onto the tiled floor of the hospital room. They assert further that Tami Lynn struck her head upon the floor with great force and violence, fracturing her skull, and that this resulted from the careless and negligent handling of the child by the employee; that as a direct and proximate result of that negligence, Dixie was forced helplessly to watch her daughter fall to the floor and to hear the sound of the impact; that as a direct and proximate result of such negligence, Dixie suffered a severe emotional and mental shock, for which she now seeks recovery in money damages.

The Whethams also ask for damages resulting from the additional medical expenses thereafter required to be expended for Tami's care and for the prolonged hospitalization of the mother while the child received this care.

The trial court, on a motion for summary judgment, dismissed that part of the complaint which asked for damages arising out of the suffering caused Dixie from the emotional and mental shock of observing her daughter fall to the floor.

Dixie has now appealed to this court from the judgment entered on the 16th day of August 1971 dismissing that part of the complaint. The complaint asserts that no claim is made on behalf of Tami Lynn for her injuries, for the reason that the full residual effects of her injuries are not yet known.

Because the Hospital has moved for a dismissal of the appeal on the ground of delay in perfecting the appeal, we must first consider that motion before we reach the merits of the appeal.

The Hospital cites in support of its motion Rules 7, 13, 21, 24, and 31 of Rules of Practice in Causes in the Supreme Court of North Dakota. It contends that notwithstanding that the case is now ready to be heard before our court, the briefs having been filed and the record settled, the case should be dismissed because Dixie failed, among other things, to file her brief within the time provided for in our Rules and failed to secure a settled statement of the case within that period.

Had her brief been filed within the required period and the statement of the case settled within that time, this case could have been heard only one month earlier.

We are inclined to deny the motion and settle the matter on the issues raised on the merits, consistent with action we took as recently as January 12, 1972, when we by minute order denied a motion to dismiss an appeal in the case of Bolyea v. First Presbyterian Church, N.D., 196 N.W.2d 149.

In the syllabus of a recently published opinion, we said:

'Because determination of an appeal upon the merits is favored, and because this court has complete discretion under its rules to determine motions for dismissal of appeals based upon undue delay, and since the delay in the instant case has not resulted in inconvenience, detriment or prejudice to the respondents, and since the record, including a settled statement of the case, was received by this court, and the briefs were served and filed with this court prior to the date of the oral argument upon the motion for dismissal, the motion is denied.' Hogan v. Knoop, Syllabus 1, 191 N.W.2d 263, 264 (N.D.1971).

The procedural facts in this case are similar to the procedural facts in Hogan. Accordingly, we deny the motion for dismissal and proceed now to a determination of this appeal upon its merits.

We must now decide whether Dixie, as the mother of Tami Lynn, may recover damages for emotional and mental shock suffered as a result of seeing Tami Lynn dropped from the arms of an employee of the Hospital onto the tiled floor of Dixie's hospital room.

There are two leading cases in the State of California on whether liability may be predicated on fright or nervous shock (with consequent bodily injury) induced solely by the plaintiff's apprehension of negligently caused danger or injury to a third person.

The first case is that of Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 (1963). In Amaya, Justice Schauer, speaking for the majority of the California Supreme Court, after reviewing the law of California and the other States of the United States, noting the development of the law as contained in the Restatement of Torts, the administrative difficulties and the socioeconomic and moral factors, concluded that under the circumstances recovery was not permitted.

Justice Schauer pointed out that there must be a stopping point to the liability of a negligent defendant and, quoting Professor Prosser, said:

"It is still unthinkable that any one shall be liable to the end of time for all of the results that follow in endless sequence from his single act. Causation cannot be the answer; in a very real sense the consequences of an act go forward to eternity, and back to the beginning of the world.' (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 24.)' Amaya v. Home Inc, Fuel & Supply Co., Supra, 29 Cal.Rptr. 33, 44, 379 P.2d 513, 524.

He then explained why he thought it unthinkable that anyone should be liable to the end of time.

'First, to the extent that the law intervenes in any area of human activity and declares that for certain consequences of that activity the actor shall be held civilly liable in damages, both the individual actor and society as a whole feel the effects of the restraint--a psychological effect in the form of a lessening of incentive, and an economic effect in the form of the cost of insurance necessary to enable the activity to continue. Yet it is recognized that no activity could survive an unlimited progression of such effects. Accordingly, when the general social utility of an activity is deemed to outweigh the particular interests with which it may clash, important policy reasons dictate that some limits be set to liability for its consequences. How do these considerations affect our problem? The law, both in California and in the many other jurisdictions which have passed on the question, now provides, as has been shown, that an actor who is merely negligent is not liable to one who claims injury through fright or shock induced by conduct directed not to the latter but to a third person. Thus, in cases where the defendant's conduct involved negligent driving of a motor vehicle the courts conclude that to extend liability to spectators who were not themselves in danger 'would, in our opinion, place an unreasonable burden upon users of Highways.' (Cote v. Litawa (1950, N.H.), supra, 96 N.H. 174, 71 A.2d 792, 795(6), 18 A.L.R.2d 216; accord, Resavage v. Davies (1952, Md.), supra, 199 Md. 479, 86 A.2d 879, 883(3--5); Waube v. Warrington (1935, Wis.), supra, 216 Wis. 603, 258 N.W. 497, 501(2--4), 98 A.L.R. 394.) As the industrial society in which we live becomes still more complex and the use of the streets and highways and airways increases, a certain percentage of accidents therefrom appears to become statistically inevitable. There will be losses, and our present system of insurance attempts to compensate for them, and, of course, to spread the cost of compensation over those who do not, as well as those who do, cause such losses. But could that system--imperfect at best--adequately and fairly absorb the far-reaching extension of liability that would follow from judicial abrogation of the rule now before us? And what of the many other activities of everyday life that are either uninsurable or customarily uninsured, yet may well give rise to the type of 'spectator injury's here alleged? We conclude, rather, that the social utility of such activities outweights the somewhat speculative interest of individuals to be free from the risk of the type of injury here alleged.

'The second reason for seeking a stopping point to the negligent defendant's liability is a related one. As long as our system of compensation § based on the concept of fault, we must also weigh 'the moral blame attached to the defendant's conduct' (Biakanja v. Irving (1958), supra, 49 Cal.2d 647, 650(1), 320 P.2d 16, 65 A.L.R.2d 1358). Here is felt the difference between the social importance of conduct that negligently causes harm and conduct that is intended to do so. It is often said that in the latter case the defendant will be held liable for a broader range of consequences because, as the consequences are intended, they are the more 'foreseeable.' But in many intentional tort cases the defendant has been held liable under this reasoning for consequences for beyond those which he actually intended. (See Bauer, The Degree of Moral Fault as Affecting Defendant's Liability (1933) 81 U.Pa.L.Rev. 586, 588--592.) It follows that, once more, 'foreseeability' is not the real answer. Rather, the increased liability imposed on an intentional wrongdoer appears to reflect the psychological fact that solicitude for the interests of the actor weights less in...