(dissenting). I dissent from the result reached by the majority and the reasoning used to reach that result. I would affirm the court of appeals.
This case proves the lawyers’ adage that hard cases make bad law. This is borne out by the majority’s language: “However, we conclude that under the unique facts presented in this case an exception to the Ver Hagen rule should be recognized.” Thus, the majority attempts to carve out safeguards for this new cause of action in order to give this plaintiff an opportunity to present her claim to a judge or jury. However, by doing so, this has not built a cause of action on a firm foundar *123tion, but rather has created a house of cards, fragile at best. The plaintiff suffered no physical injuries. The majority knowing this fatal weakness of the plaintiff’s case then sets up so-called safeguards to protect against fraudulent claims of subjective suffering. The majority seeks “some guarantee that the claim is genuine and serious.” That is a guarantee impossible to chart.
The significant reasoning of the majority which forms the basis for this newly recognized claim for emotional distress in negligent actions is as follows:
“In the case of intentional infliction of emotional distress it is the extreme and outrageous conduct which guarantees that the claim is real. In the case of negligent torts, the requirement of physical manifestations of the emotional injury is the guarantee. We find that in the appropriate circumstances the tort of negligent confinement, though based on negligent conduct, by its very nature has the special likelihood of causing real and severe emotional distress. The guarantee that the claim is probably genuine is in the nature of the tort itself.” (Footnote omitted.) (Emphasis added.)
Later the majority states, “Emotional harm, in the appropriate circumstances, is a reasonably foreseeable consequence of negligent confinement.”
The majority establishes the standard of liability that must be met for a plaintiff to recover for emotional distress alone in a negligent confinement case as follows:
(1) The defendant must have been negligent in confining the plaintiff.
Comment: There is no mention here of an outrageous confinement situation and, therefore, any negligent confinement qualifies.
(2) The confinement must be for a substantial period of time.
Comment: I would imagine a “substantial period of time” depends on the circumstances, i.e., time of day or night, area of confinement, conditions of confinement. *124What might be a substantial period of time in a closet may not be the same for the time spent in a room with a television set, a stereo set and a library of books. It would depend on the availability of normal human facilities, such as waste facilities, drinking water, food and body comfort.
The substantial period of time test will obviously have to be applied to every imaginable fact situation, with the trial court first having to determine on a motion for summary judgment whether the facts of a case qualify.
(3) The circumstances surrounding the confinement must be such that a reasonably constituted person would be emotionally harmed.
Comment: Here the plaintiff was 14 years old at the time of the events, and had been originally attended to by the police because she appeared unable to care for herself in public.
The majority allows this new claim only for “reasonably constituted persons” in society. Does that mean a person already emotionally disturbed cannot have that condition aggravated by the confinement ? The standard of a “reasonably constituted person” is an objective test and appears to be present in the law otherwise found only in the standards for provocation in heat of passion manslaughter. There is a great difference between using a concept as a partial defense to a criminal action and using it to justify an award of damages.
(4) The confinement must be a substantial factor in causing the emotional distress.
Comment: This question is obviously for the jury; however, in this case, the majority is impressed with the diagnosis by a psychiatrist who opines the confinement caused the emotional distress. Due to the nature of claims of emotional disturbance without accompanying physical injury, the discipline of medicine that will *125normally offer such opinions will be psychiatrists. This court in Steele v. State, 97 Wis. 2d 72, 97, 294 N.W.2d 2 (1980) stated:
“While some courts may have blind faith in all phases of psychiatry, this court does not ... We commented in an earlier case that this court has frequently been dismayed by the examination of trial court records which showed a marked propensity of those who purport to have psychiatric expertise to tailor their testimony to the particular client whom they represent. State ex rel. La Follette v. Raskin, 34 Wis. 2d at 622, quoting Jessner v. State, 202 Wis. 184, 187, 231 N.W. 634 (1930)."
(5) The resulting emotional distress must be severe.
Comment: Why? Are only those “reasonably constituted” persons who suffer “severe” distress entitled to seek recovery? The reason for this standard is obvious. It is a recognition again that these claims will breed fraud and exaggeration. It is a subjective test of whether a particular plaintiff suffered severe emotional distress.
In this case, the court is holding that traumatic neurosis, if established at trial, is a severe emotional distress.
Dorland’s Illustrated Medical Dictionary (24th ed. 1965) defines “neurosis” as follows: “neurosis ... A disorder of the psychic or mental constitution; in contrast with the psychosis, it is less incapacitating, and in it the personality remains more or less intact.”
The same text defines “traumatic neurosis” as: “traumatic n., one which results from an injury.”
Blakiston’s Gould Medical Dictionary (3rd ed. 1956) defines “neurosis” and “traumatic neurosis” as follows:
“neurosis ... In psychiatry, one of the two major categories of emotional maladjustments, classified according to the predominant symptom or defense mechanism. Anxiety is the chief symptom, and though there is no gross disorganization of personality in relation to *126external reality, there may be some impairment of thinking and judgment. A neurosis usually represents an attempt at resolving unconscious emotional conflicts in a way that diminishes the individual’s effectiveness in living.”
“ [T] raumatic neurosis. Any neurotic reaction in which an injury is the ‘precipitating cause; encompasses combat, compensation, and occupational neuroses. The traumatic event usually has specific symbolic significance for the patient, which may be further enforced by secondary gain.” (Emphasis added.)
“Traumatic neurosis” by medical and psychiatric definition does not appear to be, without further exposition, a severe emotional disturbance as required by the standards. If it is, then an entirely new area of claim is open for which many people in society qualify at various times of stress in their lives.
It is interesting to fathom whether the trial judge will determine on a motion for summary judgment whether a severe emotional disturbance is claimed and then whether the jury will only be allowed to award damages for an emotional disturbance to a “reasonably constituted person” if it is severe.
The court in my judgment has created an unworkable cause of action merely because it feels empathy with this young plaintiff.
I am authorized to state that Mr. JUSTICE LOUIS J. CECI joins in this dissent.