A Tort in Transition: Negligent Infliction of: Mental Distress

A Tort in Transition: Negligent Infliction of: Mental DistressAuthor(s): William WinterSource: ABA Journal, Vol. 70, No. 3 (March 1984), pp. 62-66Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20757008 .

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A Tort in Transition:

Negligent Infliction of

Mental Distress

Suffering is permanent, obscure and dark.

?William Wordsworth

By William Winter

Five-year-old Richard Rickey was

bundled to keep out the February Chi cago cold as he descended the escalator to the subway station with his mother and older brother, Robert. Near the bot

tom, Richard's coat and scarf suddenly became snagged in the moving stairs, dragging him by the throat to the foot of the escalator. As the churning gears worked the scarf tighter and tighter around Richard's neck, his mother des

perately tried to free him. Eight-year-old Robert could only stand by in terror and watch helplessly as his younger brother lost consciousness.

By the time he had been freed, Richard was comatose. He would lose

his right arm and left ear as a result of the accident, and today he remains in a nursing facility. An action for Richard's injuries was settled with the Chicago

Transit Authority and the company that manufactured and maintained the esca

lator. Then, six years after the accident, a suit was brought on behalf of Robert Rickey against the same defendants, alleging liability for the negligent inflic

tion of his mental distress at witnessing the injuries his brother suffered on the escalator in the subway station.

Over the years courts have not been

reluctant to allow recovery of damages for mental distress when the defendant acted intentionally or recklessly. As a "parasitic" tort attached to other pri

mary causes of action, claims for mental

distress have gained wider acceptance. A relatively recent body of law holds, for instance, that a plaintiff may recover

damages for mental distress caused by an insurance company's failure to fulfill

its obligations to settle or to investigate a claim.

But courts long have been vexed by the problems raised by claims of mental distress arising from negligent conduct, and this has been especially true when the plaintiff is a bystander who wit nesses catastrophic injury to another

person. These claims traditionally have

been limited by strict application of the requirement that the plaintiff also must have suffered some contemporaneous

physical impact or injury. The so-called physical-impact rule has been slowly waning, however, during the past 10 years. And in 1983 a flurry of decisions, including one in Illinois in the case of

62 American Bar Association Journal



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The 1977 Tenerife plane crash produced a claim of mental distress based on "extrasensory empathy."

Robert Rickey, practically abolished the rule.

In the wake of the sweeping changes, courts now are struggling with the application of modern replacements for the impact rule. In particular, they must apply the rather flexible tests of fore seeability of risk to an ever-widening field of liability.

The impact rule has held sway since Mr. and Mrs. Coultas were denied recovery of damages for mental anguish by a British appeals court in 1888 (13 App. Cas. 222). They claimed they were

frightened when a locomotive nearly hit their buggy after they had been permit ted to cross the railroad tracks through the negligence of a gatekeeper. But there could be no recovery, the court held, for the simple reason that the train had not hit the couple's buggy. There was no contemporaneous impact to give validity to their claim.

The impact rule was abandoned by the British 13 years later. In the United States, however, the rule became a tool of courts ever mindful of the potentially devastating effect of widening tort lia

bility for industry. The highest courts of

Massachusetts, New York and Illinois adopted it in the closing years of the 19th century, and it soon became the majority position. Judges said they feared a flood of eccentric, groundless claims. But now, factually peculiar claims are grow

ing as litigants probe the parameters of a

widening basis of recovery for negli gently inflicted mental distress.

"Extrasensory empathy" Take, for example, the claim of a sur

viving twin sister of a victim of the March 1977 crash of two jets on the run way at Santa Cruz de Tenerife in the Canary Islands. She sued, not for the wrongful death of her sister, but rather for her own mental distress allegedly sustained as a bystander via "extrasen

sory empathy" while at home in Califor nia. She alleged that at the very instant of the crash she awakened with sensa tions that included being "split" and of an emptiness "like a black hole." A New York federal court, even while applying liberal standards for recovery under Cal ifornia law, held the alleged damages

were beyond the realm of foreseeability. (Burke v. Pan American World Airways,

Inc., 484 F. Supp. 850 (1980).) A Florida appeals court recently was

faced with the question of whether a bank teller had stated a cause of action for negligent infliction of mental distress against her employer in allegedly allow ing a holdup to occur. The physical impact alleged in her complaint was the act of the robber in handing her the holdup note. The claim was dismissed. (Davis v. Sun First National Bank, 408 So. 2d 608 (1981).)

In part because of difficulties in apply ing a rule that might allow an impact as

slight as the receipt of a holdup note, the impact rule is on the way out. It is now followed in fewer than 10 states, and in 1983 alone it was abrogated by the supreme courts of Missouri, Minnesota,

Maine and Illinois. But replacing it with a workable substitute has not been easy.

The problem of assessing fore seeability of risk has been the major bugbear of modern courts. This has been especially true in cases involving mental distress purportedly suffered by uninjured bystanders, such as in the Rickey case in Illinois. Courts have been willing to allow bystanders to

March 1984 Volume 70 63



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California courts first allowed bystander recovery for a mother who witnessed her daughter's death in an auto accident.

recover?even absent impact?when the

defendant's conduct was intentional or

willful. But until recently that was not true with regard to negligent conduct. In the words of attorneys for a defendant in the Rickey case, the injury to Richard was "freakish and improbable" enough without stretching the defendants' duty of care to include an uninjured bystander.

The Supreme Court of California was the first in the United States to allow bystander recovery without physical impact. The landmark 1968 decision of

Dillon v. Legg, 441 P.2d 912, also was the first to establish workable tests for dealing with foreseeability. The case was a wrongful death action by a mo

ther who allegedly suffered emotional trauma and resultant physical distur

bances in witnessing her infant daughter being struck and killed by an auto mobile. In a sharply divided 4-3 decision

(Justice Tobriner wrote the majority opinion and Chief Justice Traynor was among the dissenters), the court allowed the mother's cause of action and set

forth the standards that have been fol lowed by a number of courts in strug gling with similar claims. The decision was criticized by Justice Burke, who stated in dissent that the court had embarked on "a first excursion into the

fantastic realm of infinite liability."

"Infinite liability" hasn't happened In the 15 years since Dillon, other

decisions have expressed the view that the feared "infinite liability" has not come to pass. That is largely because

the Dillon tests strictly limit the scope of foreseeability. The three tests are: the plaintiff must have been located near the scene of the accident; the shock must have resulted from "a direct emotional

impact upon plaintiff from the sensory

and contemporaneous observance of the

accident"; and the plaintiff and the vic tim must have been close relatives.

Bystander recovery for the negligent infliction of mental distress is now allowed in 13 states along Dillon lines, or with slight variations, such as requiring that the mental distress be severe and result in physical symptoms. Those 13 states are Arizona, California, Connecti

cut, Hawaii, Maine, Massachusetts,

Michigan, New Hampshire, New Jersey,

Pennsylvania, Rhode Island, Texas and

Washington. Nine other states, including Illinois in

the recent Rickey decision, have taken a middle position between the liberal Dillon standards and the impact rule. That position, the so-called zone of dan

ger rule, allows bystanders to recover

for physical reactions to mental distress only if the plaintiff was endangered directly by the defendant's conduct. Those nine states are Colorado, Dela

ware, Illinois, Maryland, Minnesota,

Nebraska, Tennessee, Vermont and

Wisconsin. A number of other states

have abrogated the impact rule but not necessarily in the bystander context.

The most recent states to do so are Min

nesota, Missouri and Ohio. At last

count, only eight states still adhere to the impact rule: Arkansas, Florida,

Georgia, Idaho, Indiana, Kentucky, Mis

sissippi and North Carolina. The impact rule now is largely "a rule without a rea

son," in the words of Chicago attorney James Reidy, who represented the plain tiff in the Rickey case.

Trapped in an elevator Movement away from the rule has

been especially rapid in non-bystander cases. The Missouri Supreme Court in a

lengthy opinion last February abrogated the rule in a case involving a plaintiff who was trapped in an elevator for 30 minutes. (Bass v. Nooney Co., 646 S.W.

2d 765.) A fundamental weakness with the impact rule has been the difficulty in separating "physical injury from what was to be considered purely mental and emotional reaction," the court said.

However, the court noted that this diffi culty had been overcome by an earlier Missouri appellate court decision hold ing that emotionally induced neurosis constitutes an injury to the "physical structure" of the body for purposes of satisfying the workmen's compensation statute.

Also in 1983 the Minnesota Supreme Court ruled that physical injury was no longer a necessary element for making out a case of intentional infliction of




emotional distress. (Hubbard v. United

Press International, Inc., 330 N.W. 2d

428.) In Ohio the supreme court in 1983 allowed a cause of action for negligent infliction of mental distress without con temporaneous injury. That holding came in a case involving a motorist who,

while driving on an interstate highway, suffered extreme mental distress when a thick pane of glass fell off a truck ahead of him, rebounded off the pavement and shattered his windshield. (Schultz v.

Barberton Glass Co., 447 N.E.2d 109.) In New York recently, an appellate court further weakened the barriers to bystander recovery by allowing a cause of action by parents of an infant who was kidnapped from the defendant hos pital. The leading New York case deny ing bystander recovery was dis

tinguished on its facts, and the appellate court stated that the risk of harm to the parents resulting from the hospital's alleged mismanagement of the nursery was foreseeable in light of the parent child relationship involved and the cer tainty of emotional injury occurring. (Johnson v. Jamaica Hospital, 10/17/83.)

In moving toward a broader basis of recovery for mental distress in bystand er cases, courts are now focusing on the

degree to which emotional shock results from direct and contemporaneous obser

vation of the accident. Sensory and con

temporaneous perception of the accident will generally support bystander recov ery under the Dillon standards, but diffi culties arise when the uninjured bystander learns of the accident from another or does not perceive the moment of injury to the victim.

This problem was addressed by the California Supreme Court in a 1980 deci sion in a suit brought by a husband whose wife had been misdiagnosed as

having syphilis. The result of that diag nosis was marital discord and an even

tual divorce. The husband claimed he had suffered extreme mental distress as a result of the misdiagnosis. The hus band could not claim he was the direct victim of the negligent conduct, nor could he describe himself as a direct bystander-witness to the defendant's

conduct. The court allowed recovery,

nevertheless, describing the plaintiff as

capable of perceiving the harm to his wife?he was a "percipient" witness.

The plaintiff would have to prove, however, that his mental injury was serious. (Molien v. Kaiser Foundation

Hospital, 616 P.2d 813.)

Contemporaneous perception The cases in which uninjured bystan

ders do not witness the accident have forced courts to draw fine distinctions as to what constitutes sufficient contem

poraneous perception of the underlying injury or wrongful conduct. Illustrative of the problem is a 1982 decision of the U.S. Court of Appeals for the Fifth Cir cuit in a medical malpractice case.

Parents of a brain-damaged child sued to recover damages for the mental suf

fering of the mother caused by a doc tor's alleged negligent delay in coming to her aid during 11 hours of distressed labor and in administering a powerful labor-inducing drug despite signs of fetal distress. The baby was delivered by Caesarian section with the umbilical cord wrapped three or four times around its neck and had choked on its own bowel matter.

Applying the Dillon foreseeability tests under Texas case law, the court

had no trouble finding both that the

A majority of courts have steered clear of the Dillon rule and adopted the zone of danger test for the impact rule.

mother was near the scene of the acci

dent?she literally was the scene?and

that she and the child were closely related. The difficult question was whether the mother, who was uncon

scious at the time of delivery, had "con temporaneously perceived" the acci

dent. The district court held the mother had not witnessed or even known of any injury to her new-born daughter at the time of the defendant's negligence. The Fifth Circuit sharply disagreed,

finding that the mother was certainly within the Texas foreseeability standard of being "brought so close to the reality of the accident as to render her experi ence an integral part of it." The court noted that the mother had been con scious during the 11 hours of labor and had "perceived that something was wrong, wrong enough to cause her to

fear for her child's life." The mother also had been aware of the doctor's neg

ligent acts, "particularly his absence in a near-emergency situation and his over

administration of a powerful drug which caused distress to herself and to her child." (Haught v. Maceluch, 681 F.2d 291.)

The problem of how immediate or contemporaneous the bystander's per

ception of the victim's injury must be, however, has led a majority of courts to steer clear of the Dillon rule and to adopt the zone of danger test as a sub

stitute for the impact rule. Under the zone of danger test a bystander who fears for his own safety because of a defendant's negligence has a cause of

action not solely for his emotional dis tress but for the physical injury or ill ness that results from that distress. Plaintiffs must have been within a "zone" of potential injury to themselves and also have suffered physical man ifestations of the resulting shock or dis tress.

Thus in considering the Rickey case, the Illinois Supreme Court refused to adopt a rule that would allow recovery for mental or emotional distress without any proof of objective symptoms of physical illness. A rule based on mental injuries alone would be too "vaguely defined to serve as a yardstick for courts to apply," the court stated. The

court opted for the zone of danger rule, requiring that a bystander be "in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact." (Rickey v. Chicago Transit

Authority, Nos. 55962, 55963, June 17, 1983.)

It remains to be seen whether Robert Rickey can recover for the distress he allegedly suffered in watching his brother strangle on his own clothing. The complaint alleged severe mental and emotional distress and psychiatric trauma that manifested itself in physical injury, including "definite functional, emotional, psychiatric and behavioral disorders, extreme depression, pro

longed and continuing mental distur bances, inability to attend school and engage in gainful employment and to engage in usual and customary affairs."

There was no allegation, however, as to

Robert's proximity to the escalator or possible danger to him. The Illinois court, therefore, remanded the case to

allow Robert to replead.

White knuckles on a DC-10 The Rickey decision already has

sparked conflicting interpretations in the area of damages in connection with the

March 1984 Volume 70 65



Reversing themselves, judges have allowed mental distress claims stemming from the 1979 O'Hare Airport plane crash.

many lawsuits pending in federal court in the Northern District of Illinois stem

ming from the 1979 crash of an Amer ican Airlines DC-10 at Chicago's O'Hare International Airport. The two judges who are supervising discovery in that lit igation have reversed an earlier ruling, based on Illinois law, that disallowed claims for emotional distress allegedly suffered by the victims as the plane went down. All 273 people on board died in the crash, which occurred within 30 seconds of takeoff. There are some 24 cases pending in the federal district court in Chicago.

In a memorandum opinion issued last

September the judges said the Rickey decision mandates that the plaintiffs be allowed to amend their complaints to allege "pre-impact suffering and dis tress" with "resultant physical man

ifestations" during the jet's final roll to the ground. The plaintiffs suggest they can show through expert testimony that the passengers did suffer physical man ifestations resulting from their extreme fright and terror. These would include increased heart rate, sweating, pupil

dilation, bladder and bowel inconti nence, muscular tremors, increased res

piration, restriction of coronary arteries, hyperirritability of the nervous system and shock. The defendants argue that there is no way this could be shown. (In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, No. MDL 391.)

One of the defendants, McDonnell Douglas, manufacturer of the DC-10, maintains that the two judges erred in construing the Rickey decision. In a memo to the judges, Chicago lawyer Norman Barry, the company's counsel,

disputes the notion that "pre-impact

pain and suffering" is compensable under Rickey apart from any evidence of specific, long-term physical man ifestations. "Everytime I get into a cab

my heartbeat increases and I sweat; I'm

happy to get out alive," Barry said in an interview. "But that doesn't mean I can

recover for it." In his memo Barry states that the Illinois Supreme Court "considered emotional distress as a link

in the chain of causation leading from the negligent act to damages, not as a

compensable item of damage in and of itself."

Barry said that if an amended com plaint is filed claiming damages for men tal distress, he will move to dismiss, and if that motion is denied, he will appeal to the U.S. Court of Appeals for the Seventh Circuit for an order certifying the question to the Illinois Supreme Court.

Not all questions answered The Rickey decision overrules 86

years of law in Illinois under the impact rule. Those who praise the decision say it has moved the state into conformity

with modern legal principles. Yet the issue of how to assess foreseeability of risk remains. And as the DC-10 litigation demonstrates, the federal courts in Illi nois, as well as the courts elsewhere, will be struggling with that problem for some time to come. Lumtl

(William Winter is a Chicago free lance writer and law student. He is a

former reporter for the American Bar Association Journal.)




Documents

A Tort in Transition: Negligent Infliction of: Mental Distress