Williams v. Baker

*1074FERREN, Associate Judge,

concurring in part and dissenting in part, with whom NEWMAN, Associate Judge, and MACK, Senior Judge, join:

I join in the majority’s opinion as far as it goes, but I respectfully dissent from two rules announced in Part III that limit the right to recover for negligent infliction of emotional distress caused by injury or danger to third persons. First, I would not limit recovery to situations in which the plaintiff is in the “zone of physical danger.” Second, I would not limit such bystander recovery to members of an endangered party’s “immediate family,” even if that term is left undefined. Finally, I would go further than the court in Part II and explicitly state that no physical manifestation of emotional distress is required for recovery as long as the distress is “serious” and objectively “verifiable.”

I.

If emotional distress from actual or potential injury to a third party is to be compensable at all, I do not understand why there should be a rule limiting recovery to persons who themselves are physically endangered by the act or omission endangering the third party. The court imposes a limitation which to me is a non-sequitur: “I can recover for an injury to you if — but only if — I almost got injured myself.” I agree with the California Supreme Court, see ante at 1070, that it would be too arbitrary, for example, to deny recovery for emotional distress to a mother who witnessed her child killed in an accident but to allow recovery to a sister who was a few yards closer. See Dillon v. Legg, 68 Cal.2d 728, 733, 69 Cal.Rptr. 72, 75, 441 P.2d 912, 915 (1968). The majority’s opinion attempts to justify its “zone of danger” restriction by invoking the maxim that “liability in tort law is based on a breach of duty_” Ante at 1072. But, as the court’s opinion acknowledges, “[t]he existence of a duty ... results ultimately from policy decisions made by the courts and the legislatures.” Ante at 1064. Thus, we must look at what policy considerations, if any, support the “zone of danger” limitation on recovery for distress caused by injury or danger to a third party.

The court is obviously concerned, as it should be, with avoiding “a sea of infinite foreseeability.” Ante at 1072. But there are any number of possible finite sets of people — including all those who witness a negligent act or omission — to whom the court could decide a negligent tortfeasor owes a duty. I agree that it makes sense to limit recovery to those in the zone of danger if the recovery is for emotional distress about danger or injury to oneself. As a matter of policy, we can reasonably conclude, as we do today, that distress about one’s own safety is most likely to be genuine if the plaintiff was actually endangered by the negligent act or omission. See ante Part II. The same cannot be said, however, about recovery for distress over another. I do not believe that the fact that a person was almost ensnared by the same act of negligence that injured or endangered a third party makes the first person’s distress at the third party’s situation any more, or less, credible than it otherwise would be. See Dillon, 68 Cal.2d at 774, 69 Cal.Rptr. at 77, 441 P.2d at 917; W. Keeton et al., ProsseR and Keeton on the Law of Torts § 54 at 366 (5th ed. 1984) (“It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury.”).

I therefore am satisfied that, for purposes of articulating, however arbitrarily, the reasonably foreseeable risk that defines a potential defendant’s duty of care, bystander recovery should be limited — but may be extended — to all negligent acts or omissions the potential plaintiff actually witnesses. That is to say, I believe a negligent tortfeasor has a duty not to cause physical harm to persons within the zone of danger and not to cause serious emotional harm (as defined below) to all those — within the zone of danger or not — who witness a negligent act or omission. I agree with those who argue that a potential defendant should not be expected to anticipate emotional harms that arise away from the scene of the negligent conduct itself. See, e.g., Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204, 208-09, 532 P.2d 673, *1075676 (1975). But that scene should not be as narrowly defined as the zone of physical danger. If the focus is solely on alleged distress at a third party’s endangerment, then the plaintiff can be just as distressed at witnessing that endangerment from beyond the zone of danger as from within it. See Dillon.

II.

The next question, then, becomes: what is compensable “serious emotional harm”? One way of assuring the seriousness of the harm, and thus the credibility of a claim for emotional distress about a third person, is to limit the class of persons entitled to recover to plaintiffs who have a close personal relationship with the endangered party. I agree with this approach but do not concur in the court’s limitation to members of one’s “immediate family.” One can be seriously distressed about injury to anyone with whom one has a close personal relationship, including a favorite (even child-rearing) aunt or a “significant other” with whom one lives. While the court leaves open the definition of “immediate family,” see ante at 17 n. 16, I believe the term itself connotes a relationship based on legal status and does not necessarily capture all those relationships which foreseeably would give rise to genuine distress upon witnessing another endangered by a negligent act or omission. I would permit a jury to evaluate whether a “close” or “significant” personal relationship under the circumstances is equivalent to the kind of bond one normally associates with a member of one’s immediate family, such that the emotional distress can be perceived, objectively, as equivalent to the distress one would be likely to experience from danger to an immediate family member.1

Similarly, I am pleased that the court, in announcing a framework for analyzing future cases, leaves open the question whether there should be a limitation on recovery for emotional distress to cases in which such injury itself has a physical manifestation or results in some kind of physical injury. I personally would go further to state that no physical manifestation is required as long as the distress is “serious” and objectively “verifiable.” See Bovsun v. Sanperi, 61 N.Y.2d 219, 231, 473 N.Y. S.2d 357, 363, 461 N.E.2d 843, 849 (1984). For me, a “physical manifestation” limitation as a means of assuring a claim’s credibility would make no more sense than the “zone of danger” and “immediate family” limitations which the court’s opinion imposes (after properly abandoning the obsolete direct physical injury requirement).

III.

Putting these concerns together, I suggest the following test for serious and verifiable emotional distress about danger or injury to a third party: damages for negligently inflicted emotional distress are recoverable if, but only if, the plaintiff (1) has a close personal relationship with a person who is physically endangered by the defendant’s negligence, (2) is present at the scene of the negligent act or omission and is, at the time, aware of the danger to the third party, and (3) as a result, suffers emotional distress beyond what a disinterested witness would have suffered and beyond what the plaintiff would have otherwise suffered if not present at the scene of the negligent act or omission. See Thing v. La Chusa, 48 Cal.3d 644, 667-68, 257 Cal.Rptr. 865, 880-81, 771 P.2d 814, 829-30 (1989) (establishing similar test).

The third prong of the test is necessary to prevent recovery for the normal grief or *1076distress that always accompanies the knowledge that a person with whom one shares a close personal relationship has been injured or endangered. If such normal distress were compensable, it would make no sense to limit recovery to those who witnessed the negligence, and the result would be the infinite liability which courts and commentators alike have eschewed. This prong of the proposed test would bar appellant’s claim here. Her distress was not the result of witnessing ap-pellee’s alleged negligence — a misdiagnosis — but was the ordinary distress any mother experiences when her child is hospitalized and in critical condition.

. The limitation to plaintiffs having a "close personal relationship” with the endangered third party could be expressed, alternatively, as a limitation on the negligent tortfeasor’s duty. Instead of a duty not to cause serious emotional harm to “all those — within the zone of danger or not — who witness a negligent act or omission," supra Part I, the duty could be not to cause serious emotional harm to “all those — within the zone of danger or not — who have a close personal relationship with the endangered party and who witness a negligent act or omission.” The idea in narrowing the duty this way would be that "serious emotional harm” is foreseeable only when someone with such a close relationship witnesses the danger. Whether the limitation is characterized as part of the evaluation of the claim's credibility or of the class of persons to whom the duty is owed, the result is the same.