Versland v. Caron Transport

IN THE SUPREME COURT OF THE STATE OF MONTANA

SHARON R . VERSLAND, Individually,
as Personal Representative of the
Estate of BERT MARTIN VERSLAND, Deceased,
et al.,
Plaintiff,
-vs-
CAROTd TRANSPORT,
Defendant.

ORIGINAL PROCEEDING:

FOR COUNSEL:
For Plaintiff:
Richard W. Anderson argued; Anderson, Edwards & Plolloy,
~illings,Montana: Donald Molloy argued, Billings,

For Defendant:
Herbert I. Pierce, 111, argued, Crowley Law Firm,
Billings, Montana

Submitted: May 31, 1983
Decided :

Filed:
01:i L I 1 ~ 8 3

Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
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 Ma.rtin Versland was driving a New
Holla.nd bale wagon in a northerly direction on Montana
Highway 191. Near his home, approximatley 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 pa.rt 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 al-so
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 ma.y recover for
the negligent infliction of emotional trauma caused by
witnesssing 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,
379 P.2d 513.
In Dillon v. Legg (1968), 68 Cal.2d 728, 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 esta.blish the extent
of that obligation for every circumstance
 of the future. We cam, however, define
guidelines which will aid in the
resolution of such an issue. . ."
Dillon, 441 P.2d 912, 920.
In establishing guidelines, the California Supreme
Court stated:
I1
... [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, 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 a.11 claims of psychic trauma absent actual
physical impact was arbitrary. Battalla v. State (19611, 10
N.Y.2d 237, 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,
176 N.E.2d at 731-732. In another New York case, bafferty v.
Manhasset Medical Center Hospital (1980), 103 ~isc.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 wa-s 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
reasons-bly 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 a.llowed 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, 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. 19801, 497
F.Supp. 487; Corso v. Merrill (1979), 119 N.H. 647, 406 A.2d
300; a.nd Krouse v. Graham (1977), 19 Cal.3d 59, 562 P.2d
1022.
It is clear that over the years since Dillon was handed
down, the requirements of presence and observation h.a.vebeen
expanded and the distinctions between the two elements have
blurred. We find that if a plaintiff is required to
experience actual sensory perception of the accident, the
requirement of proximity is necessarily satisfied.
Consequently, we hold that to recover in Montana for the
negligent infliction of emotional distress the first element
to be considered shall be as foll-ows:
Whether the shock resulted. from a direct
emotional impact upon plaintiff from the
sensory and contemporaneous preception of
the accident, as contrasted with learning
of the accident from others after its
occurrence.
The next element pertains to the degree of relationship
between the plaintiff and the victim. Dillon requires that
the plaintiff and victim be "closely related," as contrasted
with the absence of any relationship or the presence of only
a distant relationship. This requirement has also been
expanded by various jurisdictions in the years since ill on.
For example, Arizona, in Keck v. Jackson (1979), 122 ~ r i z .
114, 593 P.2d 668, interpreted this requirement as including
"a person with whom the plaintiff has a close personal
relationship, either by consanguinity or otherwise." Keck,
593 P.2d 668, 670. The Supreme Court of Hawaii held that the
absence of a blood relationship between the victim and the
plaintiff bystander would not foreclose recovery of damages
for psychic injury, and the New York lower appellate court in
Lafferty, supra, permitted a daughter-in-law to recover. We
hold, however, that the guideline for the necessary
relationship shall be the same as that of Dillon:
Whether plaintiff and the victim were
closely related, as contrasted with an
absence of any rela.tionship or the
presence of only a distant relationship.
The third element which we hold must be considered in
an action for the negligent infliction of emotional distress
is:
Either death or serious physical injury
to the victim must have occurred as a
result of defendant's negligence.
Under the foreseeability test, supra, we find that it
is reasonably foreseeable to a defendant that serious
emotional distress to one party may arise from defendant's
negligent acts inflicting serious bodily injury or death to a
second party. We do not choose to limit recovery strictly to
accidents wherein the victim dies. However, we do not intend
that bystanders be allowed to recover even where there is
severe emotional distress when the victim is not seriously
injured . Whether the injury is sufficiently severe to
support a claim for recovery will have to be decided on a
case-by-case basis in the trial court.
 We note that a number of jurisdictions still require
tha.t plaintiff bystander prove physical manifestations of the
underlying emotional trauma. While required under Dillon,
California abandoned this requirement in Molien v. Kaiser
Foundation Hospitals (1980), 167 Cal.Rptr. 831, 616 ~ . 2 d
813.
In Molien the court stated:
"It supposedly serves to satisfy the
cynic that the claim of emotional
distress is genuine. Yet we perceive two
significant difficulties with the scheme.
First, the classification is both
overinclusive and underinclusive when
viewed in the light of its purported
purpose of screening false claims. It is
overinclusive in permitting recovery for
emotional distress when the suffering
accompa.nies or results in any physical
injury whatever, no matter how
trivial. .. More significantly, the
classification is underinclusive because
it mechanica.11~ denies court access to
claims that may well be valid and could
be proved if the plaintiffs were
permitted to go to trial.
"The second defect in the requirement of
physical injury is that it encoura.ges
extravagant pleading and distorted
testimony. Thus it has been urged that
the law should provide a remedy for
serious invasions of emotional
tranquility, 'otherwise the tendency
would be for the victim to exaggerate
symptoms of sick headaches, nausea,
insomnia, etc. , to make out a technical
basis of bodily injury, upon which to
predicate a para.sitic recovery for the
more grievous disturbance, the mental and
emotional distress she endured. '
(Magruder, Mental and Emotional
Disturbance in the Law of Torts (1936),
49 Harv.L.Rev. 1033, 1059; see also Anno.
(1959) 64 A.L.R.2d 100, 117, fn. 18, 128
& f. 8 [suggesting that 'in most
instances of severe mental disturbance
some deleterious physical consequence
can, with a little ingenuity, be found
.
. . , I and that characterization of an
injury as physical or mental may depend
on the ingenuity of counsel in framing
the pleadings] . ) " Molien, 616 P.2d at
820.
The Court reasoned that the attempted distinction
between physical and psychological injury merely clouds the
essential issue of proof: whether pla.intiff suffered a
serious and compensable injury. In addition, we find that in
light of today's more advanced state of medical science,
technology and testing techniques, the traditional limitation
of requiring the existence of physical injury as a condition
precedent to recovery for psychic injury is no longer
necessary. While physical manifestation of emotional trauma
may be considered by the trier of fact along with other
evidence, physical manifestations will not be required to
support a prima facie case for negligent infliction of
emotional distress.
Defendant argues that acceptance of bystander recovery
will not further justice and that arbitary rules will not
shield the defendant from unlimited liability. We find
defendant's arguments unconvicing. Defendant's a-rgumentsare
essentially the same as those raised by the defendan.t in
Dillon, and history has shown that Dillon did not provide a
basis for unlimited liability, even in those jurisdictions
which have relaxed Dillon's basic requirements. We do not
state that defendant has unlimited liability in a
circumstance such as the facts of this case. Indeed, we
specifically hold that defendant has potential liability only
for injuries to others which to defendant at the time were
reasonably foreseeable.
In summary, we hold the following to be proper elements
for the courts to apply when determining a claim for dama.ges
for the negligent infliction of emotional distress:
1. The shock must result from a direct emotional
impact upon the plaintiff from the sensory and
contemporaneous perception of the accident, as contrasted
with learning of the accident from others after its
occurrence.
 2. The plaintiff and victim must be closely related,
as contrasted with an absence of any relationship or the
presence of only a distant relationship.
3. Either death or serious physical injury of the
victim must have occurred as a result of the defendant's
negligence.
Issue No. 3 asks whether the nonadopted minor
stepchildren of decedent may state a claim for the
deprivation of decedent's consortium and support. Plaintiff
argues the basis for these damages is section 27-1-323, MCA:
"[iln every action under 27-1-512 and 27-1-513 such damages
may be given as under all the circumstances of the case may
be just,'' and section 27-1-513, MCA: " [wlhen the death of
one person, not being a minor, is caused by the wrongful act
or neglect of another, his heirs or personal representatives
may maintain an action for damages against the person causing
the death or, if such person be employed by another person
who is responsible for his conduct, then also against such
other person." (Emphasis added.)
Plaintiff contends decedent's nonadopted stepchildren
are "heirs" within the meaning of section 27-1-513, MCA, and
to exclude their claim would be contrary to public policy.
Heirs are those persons who are entitled to the property of a
decedent under the statutes of intestate succession. Section
72-1-103 (18), MCA. A child may take from a decedent through
intestate succession if the child is issue of the decedent.
Section 72-2-203, MCA. Issue of a person means all his
lineal descendants. Section 72-1-103 (22), MCA. Thus,
nonadopted stepchildren of a decedent are not heirs as
defined by the intestacy statutes. As this Court stated in
Swanson v. Champion International Corp. (Mont. 1982) , 646
P.2d 1166, 1170, 39 St.Rep. 639, 643, ". . . the source of
the damages recoverable in a wrongful death action is
personal to the survivors of the decedent. The damages are
not those of the decedent, but of the heirs by reason of his
death." As the stepchildren are not heirs, they are not
entitled to bring a claim for the deprivation of decedent's
consortium and support.
Plaintiff argues the Arkansas Supreme Court recognized
stepchildren's claim for loss of consortium and support in
Moon Distributors, Inc., v. White (1968), 245 Ark. 627, 434
S.W.2d 56. However, under Arkansas's wrongful death statute,
beneficiaries of a wrongful death claim "are the surviving
spouse of the deceased person, children, father and mother,
brothers and sisters, persons standing in loco parentis to
the deceased person, and persons - - -the deceased stood
to whom

- - parentis."
in loco Ark.Stat.Ann. Section 27-908. (Emphasis
a.dded.) Thus, the Arkansas wrongful death statute is drafted
specifically to include stepchildren whereas the Montana
wrongful death statute is not.
Pla.intiff claims a stepparent who provides support to a
stepchild becomes a "presumptive parent." Section 40-6-217,
MCA. However, this section is not related to the wrongful
death statute and only provides that "if he receives them
into his family and supports them, it is presumed that he
does so as a parent and, where such is the case, they are not
liable to him for their support nor he to them for their
services."
Lastly, plaintiff argues even if the stepchildren
cannot recover under the wrongful death statute, they are
entitled to bring a separate action for loss of consortium.
In some jurisdictions a natural child may bring a cause of
action for loss of consortium. See, Ferriter v. Daniel
OIConnell's Sons, Inc. (Mass. 1980), 413 ~.~.2d
690.
However, these cases deal only with natural children whereas
the issue certified by the Federal District Court deals only
with nonadopted stepchildren. Thus, these cases are not
controlling.
We therefore hold that nonadopted minor stepchildren of
a decedent cannot state a claim for the deprivation of
decedent's consortium and support.
A copy of this opinion shall be mailed to the Clerk of
the United States District Court for Montana, Billings
Division.

A g *
% d?
Chief Justice
~
We concur:

District Judge, sitting in
place of Mr. Justice John
Conway Harrison