dissenting in the result and otherwise concurring in part and dissenting in part.
I dissent in the result, because I believe the change in law occasioned by the majori-
*202ty opinion should operate prospectively only. I concur in the change in law reflected in the majority opinion to allow recovery for negligently inflicted damages consisting only of mental injury or fright in the circumstances of this case, but I would restrict such recovery to spouses, parents, and children of the person who was seriously physically injured or killed, as held in Saffels v. Bennett, Wyo., 630 P.2d 505 (1981), and I would allow recovery by them only if they were at the scene of the incident to witness its occurrence.
RETROSPECTIVE APPLICATION
Although it may be, as said in the majority opinion, that this is the first case
“* * * in which an action for damages resulting from negligent infliction of [only] emotional distress has been directly presented to this court,”
there may have been many other cases decided in Wyoming and not appealed to this Court in which was applied the common law requiring impact or threat of impact before fright or mental injury could be considered as an element of damages. Applying that set forth by Justice Cardine in Adkins v. Sky Blue, Inc., Wyo., 701 P.2d 549 (1985);-1 believe the result in this case should be governed by the impact rule in effect at the time of the incident. In Adkins, Justice Cardine wrote in part at pages 551 and 552:
“The common law has served us well because it is flexible, able to grow and meet the requirements of changing conditions and a different society. There are times when change is necessary; but the doctrine of stare decisis is also important in an organized society. Change, therefore, should occur slowly, deliberately after much experience, and if possible so as not to affect vested rights or things in the past. Thus, it is said that:
“ ‘[T]he courts may apply or effectuate common law principles in the light of altered or new conditions, and when the circumstances and conditions are different, in that the common law principles are unsuitable to new circumstances or conditions, the needs of society, or in conflict with public policy, the courts may make such changes or modifications as the situation requires.’ (Footnotes omitted.) 15A C.J.S. Common Law § 13. See, Irwin v. Coluccio, 32 Wash.App. 510, 648 P.2d 458 (1982).
“Acknowledging that there ought to be an extreme reluctance to change the common law and recognizing the obvious benefits of the doctrine of stare decisis, yet on occasion it does become eminently clear that society has long passed beyond the point where an ancient doctrine remains viable. * * *
******
“Initially it was held that a court issuing an overruling decision had merely discovered and announced existing law; since the overruling case did not create new law, but merely recognized what had always been the law, such law would operate both retrospectively and prospectively:
“ ‘ “[B]ut the modern decisions, taking a more pragmatic view of the judicial function, have recognized the power of a court to hold that an overruling decision is operative prospectively only and is not even operative upon the rights of the parties to the overruling case. As a matter of constitutional law, retroactive operation of an overruling decision is neither required nor prohibited.” ’ Thome v. City of Newton, 229 Kan. 375, 624 P.2d 454, 458 (1981) (quoting from Anno., Comment Note— Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 1378 (1966)).
“We have held that
“ ‘[t]here is no distinction drawn between civil and criminal litigation; a ruling may be prospective only and it may apply to the invalidity of statutes as well as to the effect of a decision overturning long-established common-law rules; the constitution neither prohibits nor requires retrospective effect and the federal Constitution *203has no voice upon the subject; and, the accepted rule today is that in appropriate cases in the interests of justice, a court may make its decision prospective.’ (Emphasis and footnote in original omitted; our emphasis added.) Ostwald v. State, Wyo., 538 P.2d 1298, 1303 (1975).
“Where an overruling decision announces a change in the common law, some guidelines are set forth in Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for whether its operation should be retrospective or prospective only:
“ ‘In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, 392 U.S. [481], at 496, 88 S.Ct. [2224], at 2233, [20 L.Ed.2d 1231 (1968) ], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra, 393 U.S. [544], at 572, 89 S.Ct. [817], at 835, [22 L.Ed.2d 1 (1969) ]. Second, it has been stressed that “we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, supra, 381 U.S. [618], at 629, 85 S.Ct. [1731], at 1738, [14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” ’ Id., 92 S.Ct. at 355.
“This court has on several occasions considered whether a change in law should operate retrospectively or prospectively. In Nehring v. Russell, Wyo., 582 P.2d 67, 80 (1978), we stated that
“ <* * * £jje determination is ours to make, [and] we conclude that in consideration of all the factors and any prior reliances involved, our holding should be applied prospectively only, i.e., to this action and all causes of action accruing after 30 days following the date of this decision.’ ” (Emphasis in original.)
In this state, the impact rule was the common law applicable to incidents similar to that in this case at the time of such incident. Section 8-1-101, W.S.1977 (August 1978 Replacement), provides:
“The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.”
We have often applied the common law, e.g., Goldsmith v. Cheney, Wyo., 468 P.2d 813 (1970); McKinney v. McKinney, 59 Wyo. 204, 135 P.2d 940 (1943); State v. Foster, 5 Wyo. 199, 38 P. 926 (1895). We have recognized that the common law is not exactly as it was in 1607, but it encompasses changes by judicial decisions since that time, including English decisions and other common-law decisions in United States courts. Snell v. Ruppert, Wyo., 541 P.2d 1042 (1975); Krug v. Reissig, Wyo., 488 P.2d 150, 52 A.L.R.3d 748 (1971); Naab v. Smith, 55 Wyo. 181, 97 P.2d 677 (1940). As said in Choman v. Epperley, Wyo., 592 P.2d 714, 716 (1979):
*204“The adoption of common law by Wyoming was not an adoption of a set code of law. * * * Nor was the adoption one of static and nonchanging law. * * *” And as said in Johnston v. Laird, 48 Wyo. 532, 538, 52 P.2d 1219 (1935):
“* * * [W]e must decide this case in accordance with the decisions subsequent to the time of James I, in so far as not inconsistent with the laws of this state, and the decisions which must govern us, to the extent mentioned, are not only the English decisions * * *, but other decisions as well, comparatively recent though they may be * *
In Victorian Railways Commissioners v. Coultas, 13 A.C. 222, 226 (1888), the judicial committee of the Privy Council refused damages to the plaintiff caused by the defendant’s negligence in absence of proof of actual impact. The judgment, speaking through Sir Richard Couch, noted that precedent had not been previously established in a similar action. In the same year, recovery was denied for physical injuries due to fright in Lehmon v. Brooklyn City R. Co., N.Y., 47 Hun 355 at 356 (1888), Justice Dykman also noting that there was no principle or authority “found or referred to for such action.” Thus was started the impact rule.
The impact rule has been changed in many respects by this Court and most courts since 1888. But it is necessary to distinguish the situations in which it has been changed and which have no pertinen-cy to this case. We are not here concerned with tort injuries caused by other than negligence. False imprisonment, trespass, intentional acts, worker’s compensation acts, et cetera are subject to different standards and results. Nor are we concerned with mental injuries which result in physical damage. The situation wherein the plaintiff is the direct victim1 of the defendant’s negligence must be distinguished from cases, such as this, in which the plaintiff is a bystander or is one even further removed from being a direct victim of the defendant’s negligence. Requirements for liability for injuries resulting from one of these circumstances are not necessarily appropriate in gauging liability in the others. This is a bystander case, and, as noted in the majority opinion, it is the first case in this state for consideration of a change from the common-law impact rule in such cases. The impact rule was generally considered to be the common-law rule. See McCormick on Damages § 89 (1935); Pros-ser, Law of Torts, §§ 12, 53 and 54 (1971); 38 Am.Jur.2d, Fright, Shock, and Mental Disturbance §§ 1, 3 and 36 (1968).
The trial court’s ruling was proper under the law at the time of the ruling and at the time of the incident. We should not overrule it retroactively. I would affirm the trial court on this basis.
PROSPECTIVE APPLICATION
Medical science has advanced a great deal since the adoption of the impact rule. Diagnostic techniques, research tools, and educational advancement are of sufficient magnitude as compared with those of 1888 to allow, under certain circumstances, the proof of mental injury and its causal connection with an incident occasioned by the defendant’s negligence, and to reduce, not eliminate, the probability of specious or fraudulent claims. Accordingly, I believe it is necessary to carefully designate the circumstances under which an action will lie prospectively.
The majority opinion has attempted to do this. Noting that this is a bystander case and that said herein concerns only such cases, my disagreement with prospective application of the majority opinion, as stated supra, is with its extension of those allowed to recover beyond spouses, parents, and children of the person seriously injured or killed and with its extension of allowing such recovery by them if they *205come upon the scene of the incident after its occurrence and before there is a material change in the condition and location of the victim.
With reference to the necessary relationship between the primary victim and the bystander, I agree that the policy set by the legislature in the wrongful death act is a proper place to draw the line. I do not agree that the interpretation of the wrongful death act phrase, “every person for whose benefit such action is brought,” by the Court in Wetering v. Eisele, Wyo., 682 P.2d 1055, 1060 (1984), was proper. In fact, the interpretation in that case was that such phrase included persons identified- in the statute providing for intestate distribution — persons in addition to those defined in the majority opinion and who could be far more removed in relationship than parents, children, spouses, and siblings. Technically, it would include the paper boy.
I believe the proper interpretation of the phrase was that made in Jordan v. Delta Drilling Company, Wyo., 541 P.2d 39, 78 A.L.R.3d 1215 (1975), and Saffels v. Bennett, supra — i.e., parents, spouses, and children. My dissent in Wetering v. Eisele, joined by Justice Brown, reflected the common sense difficulty with the problem in that relationship does not always indicate the extent of the loss. A very close friend, perhaps working and living with the deceased for several years, may be closer to the deceased than a brother who has not seen the deceased or kept in touch with him for many years. Nevertheless, the practical necessity of drawing the line at a reasonable place dictates that it be done on the legislatively declared policy as interpreted by the Court in Saffels v. Bennett and Jordan v. Delta Drilling Company. If a case similar to this one occurred prospectively, the mother, brother, and sister would qualify as plaintiffs from the relationship standpoint under the majority opinion and under my analysis — although the result would be reached in a different fashion in each instance.
With reference of a plaintiffs proximity to the incident as a qualification of a proper party plaintiff, I would not allow a proper plaintiff status unless the party were at the location of the incident at the time it occurred. Again, it is a question as to where the line should be drawn. A death can occur on a highway, several days before it is discovered. And, if it is the sight of the injuries which causes the damage, such can occur upon viewing the victim hours later in the morgue or hospital. In other words, I would extend the position of the Restatement, Second, Torts only slightly. Section 436A thereof provides: “Negligence Resulting in Emotional Disturbance Alone
“If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.”
Restatement, Second, Torts § 436 reflects the existence of liability if the negligent conduct subjects the plaintiff to fright or emotional disturbance, which in turn causes bodily harm, and subsection (3) thereof applies the rule when the bodily harm results from “shock or fright at harm or peril to a member of his immediate family occurring in his presence.”
Restatement, Second, Torts § 46 concerns recovery for severe emotional distress occasioned by “extreme and outrageous conduct intentionally or recklessly” causing severe emotional distress.
The circumstances of this case do not fall within that set forth in Restatement, Second, Torts § 436 or § 46, but the provisions thereof reflect a reasoning which I can carry to the circumstances of this case and thus go further than that provided in § 436A and allow recovery as set forth supra — i.e., if a case similar to this occurs prospectively, only Johnny’s brother would be a proper plaintiff.
*206CONSORTIUM
Since the mother would not be a proper plaintiff, not having been at the scene when the incident occurred, her husband, Johnny’s stepfather, could not recover for loss of consortium.
Additionally, since loss of consortium has been held to be a form of mental injury, Scott v. St. Louis-San Francisco Railway Company, 39 Tenn.App. 534, 286 S.W.2d 347 (1954), Johnny’s stepfather should not be a proper plaintiff even under the criteria of the majority opinion. He was not at the scene at the time of the incident and did not arrive before there was a material change in it, and he was not Johnny’s father.
INSURANCE
The majority opinion refers to the effect of insurance upon the issue. I believe courts should determine cases on the merits without any consideration of insurance one way or the other. The decisions should be founded on the relative rights of the parties without any knowledge or consideration on our part of their insured status.
I would reverse.
. Cases involving a "direct victim" are those in which the damages result from the plaintiffs fear for his or her own safety as a result of the defendant’s actions directed against the plaintiff; e.g., handling of dead bodies, negligence of common carriers, or in telecommunications, et cetera.