Air Florida, Inc. v. Zondler

ALLEN, Before GUILLOT and STEW- ART, JJ.

ALLEN, Justice. Florida, ap- Inc. a limited

Air has filed peal challenging portion of the trial non-peeu- judgment which awarded court’s William,Jr., niary damages Carolyn, Patrick Zondler for the death of Zondler, Air Florida contends William Sr. non-pecuniary damages can minor wrongful death of awarded for the children, damages for award anguish and loss both mental recovery, and that amounted to a double support the dam- no there was anguish because age any of the Zon- there no evidence that injury accompa- any physical dlers suffered anguish. reject Air nying their mental agree but Florida’s first two contentions proof of requisite that there was not the support an award physical injury any of the anguish to damages for mental addition, reject the Zon- we Zondlers. trial court erred cross-points that the dlers’ interest failing prejudgment to award finding that William jury’s and that pain or mental Zondler, Sr. suffered against the death was anguish before his of the evi- weight preponderance great judg- reform the Consequently, we dence. damage awards ment to eliminate as reformed. anguish and affirm Zondler, in the was killed Sr. William an Air Florida crash of widely-publicized jet Washington, D.C. jetliner the Poto- bridge and into through a crashed liability admitted mac River. parties tried the and the by stipulation, solely the issue of case judgment awarded trial court’s wife, Zondler, Zondler, Sr.’s William $1,500,000.00 loss, $500,- pecuniary supreme When we look the cases the consortium, $300,- 000.00 2 of opinion, overruled footnote 000.00 It awarded Sanchez, we conclude Zondler, William Jr. and Patrick supreme rejected that the court in Sanchez sons, $20,000.00 the deceased’s each for completely rule there can be pecuniary loss, $50,000.00 each for loss of non-pecuniary damages companionship $50,000.00 society, and and wrongful supreme The death cases. court each for mental in footnote 2 overruled a number of cases in challenges which the deceased was not a minor judgment Air Florida the first cases, only on basis of child. In position the its that awards of those the could damages non-pecuniary wrongful overruling language in death the enunci- cases are limited the in ating non-pecuniary situation which the former rule that is deceased a minor child. Air Florida damages are not recoverable. For exam- grounds argument chiefly prem- its two on ple, supreme the court overruled March v. (1) general ises: the rule in Texas has Walker, (1877), 48 Tex. 372 the case oldest always non-pecuniary damages been that progenitor pecuniary of the in loss rule in wrongful are not recoverable death ac- Sanchez, Texas. 651 S.W.2d See (2) precise holding tions and the in Sanchez Walker, In guardian March v. the and next Schindler, (Tex.1983), 651 S.W.2d 249 friend of the decedent’s minor had children parent non-pecuniary that a can recover brought wrongful the death action. March wrongful for the death of a minor Walker, 2 Tex. at 373. Footnote child, Hence, limited its is facts. Air singles page out 375 of the March v. Walk- argues, although Florida Sanchez created page containing por- er the as the exception general against to the rule tion of that decision the which Sanchez nonpecuniary recovery, exception is court meant to overrule. The lan- relevant applicable only in the case of a minor guage Walker, in March Tex. at wrongful child’s death. Air Florida but- is as follows: position by noting tresses ma- language [wrongful death] jority adopt in Sanchez declined to “damages proportioned statute to the in- language broad Ray’s concurring Justice jury death,” resulting from such is opinion, urged which the court to hold ex- statute, English same as ... is plicitly family that any could member re- settled, by well given that the non-pecuniary damages. addition, cover are pecu- statutes measured argues special that there is a niary respective parties enti- allowing non-pecuniary rationale recov- tled, including prospective ad- ery child, a case of minor name- vantage. The is measure ly, that minor children in modern party not the as himself same when produce, part, for the pecuniary most received, injuries sued for and recovers parents value for their and that continued compensation and mental application of the rule to old eases which suffering. universally child killed would almost Thus, the court in footnote 2 over- Sanchez recovery by parents. exclude the bereaved pro- original ruled none other than the This, particular Air says, injus- Florida wrongful limiting recovery in nouncement tice Sanchez court found neces- pecuniary to the death actions loss. sary to correct. Air Florida insists addressed no other in- Sanchez or broader Clearly, rationale behind justice than this effective denial recov- holding completely rejects the no Sanchez ery wrongful in all death in which a cases tion that death must be family minor child was member killed. disagree pecuniary limited to loss. We Air special Florida’s contention that a After close examination of the Sanchez opinion, accept concerning rationale we cannot Air Florida’s minor children animat analysis supreme court’s decision. ed the The universal Sanchez decision. parents Appeals, Hofer, in Lavender v. 658 S.W.2d denial of to bereaved 1983), (Tex.App. Corpus not be harsh and Christi minor children would — unjust non-pecuniary part, if losses were not real part, rev’d in all other affd compensation. (1984), demand See approved losses which grounds, Sanchez, (non-pecuniary 651 S.W.2d at parents non-pecpniary dam an award to injuries worthy ... “significant losses are who, death of a child accord ages for the Whittlesey v. compensation”), citing opinion, ing Supreme to the Texas (Tex.1978)(loss Miller, years at 471. eighteen old. damage). compensable of consortium Appeals, El Paso Court of Moore v. real losses to Denying recovery for these Lillebo, (Tex.App. —El parent, to have lost a adult children who 1984, writ), allowed an Paso children, or to parents have lost adult who damages for the death of an non-pecuniary who have lost their husbands and wives child, as did Houston’s First adult unjust, equally spouses harsh would be Appeals City Judicial District Court in for some especially in those cases which Stoddard, 280, 675 S.W.2d Houston v. killed wrongfully would reason the adult 1984, (Tex.App. [1st Dist.] —Houston provided pecuniary benefits. See not have case, n.r.e.). only There is one writ ref’d (“[a] parent’s Sanchez, at 252 651 S.W.2d Appeals, Court of from the Fort Worth compan- the loss of claim for Sanchez, that, non-pecu holds under which closely analogous to ionship of a child is to cases in which niary recovery is limited created of consortium action loss Piper minor child. Air decedent is a ”). majority opin- Finally, the Whittlesey Fire Insurance Co. Corp. & United craft language of adopt the broad ion’s failure to (Tex. 447, Yowell, 461-62 674 S.W.2d signifies little. Ray’s concurrence Justice 1984, writ). any no App. Worth —Fort con- for a court to jurisprudence It is wise stated, event, already we reasons for the actually the facts before holding fine its court’s inter accept Fort Worth cannot it, logical implications the ration- whatever pretation of Sanchez. Indeed, a holding might have. for its ale power determine has no Texas court non-pecu hold that to the decision questions not essential actions is death niary damages In- controversy it. Firemen’s before par than the plaintiffs other allowable Newark, Jersey v. New surance Co. of wrongfully killed. In of a minor child ents 331, (Tex.1968); Burch, 442 S.W.2d children of spouse and adult particular, the 568, McKenzie, 667 S.W.2d McKenzie may killed recover wrongfully person 1984, writ); Da- (Tex.App. —Dallas Insur- County Mutual Dairyland vis v. 591, Texas, 582 S.W.2d ance Co. is the nature question The next 1979, ref’d n.r. writ damages that are recov non-pecuniary —Dallas e.). non-pecu says that the erable. family in the a death niary damage which Ap- Texas Court majority A of the companion if “loss brings, even called ques- faced the peals decisions which to noth really amounts society,” ship and agree conclusion with our tion us before cannot anguish. We ing more than are recoverable non-pecuniary losses that society and companionship agree. Loss of a minor is not the decedent even when companion consortium, (or includes Co. v. Railroad Missouri child. Pacific relations) men and sexual ship, (Tex.App. Dawson, 741-42 662 S.W.2d kinds of items or anguish are distinct tal n.r.e.) ref’d writ —Corpus Christi and socie damage. companionship Loss damages to a widow non-pecuniary granted in itself loss good, which ty loss of a is the of her husband wrongful death for the Miller, Whittlesey v. compensable. See loss spouse coúld recover either stated Sanchez, 667-68, cited wrongful death damages in a of consortium anguish is an 252. Mental Court of S.W.2d Corpus Christi The same action. consequential additional result of loss proved dlers have not the physical good. of that A might death in the-family required anguish of mental numb, emotionally leave one Sanchez, unable to feel damages. Before the Texas rule grief; yet, so, even loss of the loved was that society, good things one’s that come only plaintiff be could recovered if the being from person, would tort, gross negli- showed intentional nonetheless real. grief Even when normal gence, willful disregard, and wanton or an subsides, does, usually itas accompanying physical injury. Farmers & good in the companionship deceased’s still Ferguson, Merchants State Bank v. persists. consequently It is not surprising (Tex.1981). question S.W.2d that the decisions squarely addressing this changed is whether Sanchez rule. question agree that of society loss Texas, Baptist Hospital Southeast Inc. are distinct items of recov- Baber, (Tex.App. 298-99 ery. Reed, State Utilities 1984, writ) —Beaumont Gulf holds San- (Tex.App.—Houston 852-53 change rule, chez did but the court of n.r.e.), accord, writ ref’d [14th Dist.] appeals in supports that decision its view Lillebo, (Mis- Moore v. 674 S.W.2d at 477. pointing remarks in the souri Railroad v. Dawson states expressing Pacific apprehension Sanchez dissent “conceivably” dictum that these items are language about in the majority distinguishable. Missouri Rail- suggest which seemed to Pacific “that road, 742-43.) We hold that anguish, slight, however compensable.” plaintiffs a wrongful may death action Sanchez, C.J., (Pope, (or recover both for consor- However, dissenting). the dissent acknowl- tium) and mental anguish. edges plaintiff that in the satis- Sanchez physical fied the injury threshold. Id. Al- Finally, we Air consider Florida’s though opinion the use Sanchez does broad contention the not, that in Zondlers were expansive language discussing in re- any case, entitled to recover for mental covery of mental damages, we find anguish. First, Air argues Florida that in nothing holding either the ration- or the plaintiffs in this case were not in the “zone opinion definitely ale of that indi- of danger” Zondler, died, when William Sr. change requiring cates a in the former rule had “contemporaneous perception” of proof an accompanying physical injury. accident, the and thus should not recover Indeed, plaintiff the in Sanchez did suffer accompanying physical injury, namely, urges this court to find that the Texas frequent neck pains and shoulder and head- Supreme Court erred Sanchez when Sanchez, (majori- aches. 651 S.W.2dat 253 held plaintiff that a death need Moreover, ty opinion). Luna North not have danger” the “zone of or Sales, Inc., Dodge Star 667 S.W.2d have had “contemporaneous perception” (Tex.1984) 117-18 seems to retain the tradi- of the accident to recover mental an tional limitations on of mental an- guish. Sanchez, 651 S.W.2d at 254 n. guish damages, although does course, Of this court authority has specifically not requirement mention the find that the Texas has accompanying physical injury. We there- Swilley McCain, erred. 374 S.W.2d appeal’s fore decline to follow court of (Tex.1964); Depart Woodard Texas holding Baptist Hospital. hold in- We Resources, ment Human simple negligence stead that in a case (Tex.Civ.App.—Amarillo1978, writ accompanying physical injury a neces- is n.r.e.). ref’d sary predicate to recover men- Air argument Florida’s second tal anguish. issue of Zondlers’ entitlement anguish damages more is substan do not that Zondlers contend tial. Air Florida that the Zon- Air in contends Florida’s fault reached the level of ref’d). Further, tort, gross negligence, or willful Eastland writ

tentional Weller, (Tex. we State disregard. Consequently, and wanton proved App. writ ref’d must decide whether Zondlers [14th Dist.] —Houston n.r.e.), Sanchez requisite injury. evi the court held that did physical The best not physical change long-standing Zondler rule. We Carolyn dence of con authority that “collapsed against that the wall” clude the most was she relevant proba cross-point; contrary her had to the Zondlers’ first hearing that husband had severe bly consequently, died and that she suffered we overrule it. It is depression anxiety attacks. not argue The Zondlers also that clear, however, Carolyn Zondler’s whether finding Sr. jury’s that William suf fact, was, collapse “collapse” physical pain fered no or mental before his involving or motor loss of consciousness pre against great weight death simply or emotional control was natural ponderance of the evidence. Zondlers’ crushing Depression reaction to the news. point mainly on this comes from a psychological, physical, is a afflic alone not plane crash. This survivor survivor anxiety in Although attacks often tion. traveler) (an airplane experienced testified physical symptoms, as the ina volve such off, took it shook plane that when the so breathe, that

bility to there no evidence abnormally he knew almost immedi physical suffered Zondler wrong. ately something was Other symptoms. said, people, looking he around after were of William The evidence of effects they say did not whether take-off. He Zondler’s on his two sons is even less death puzzled. simply or seemed to afraid This evi- suggestive physical injury. that he observed that This testified witness dence, testimony of a psychologist, ascending after take-off. plane was psychological on the emotional and touches runway, layout of the he he Since knew problems experienced on account the sons seconds after take-off realized within ten is.nothing of their father’s death. There He therefore plane would crash. relating symptoms all. impact. He testified prepared himself that, after the collision consequently find because the he conscious although produced at trial of he did black out bridge, Zondlers no evidence the the dam- the water. accompanying physical injury, plane subsequently all hit the when anguish testimony mental must be there age reported awards for his He & State disallowed. Farmers Merchants moaning after the and people crying were 921; Ferguson, Bank v. crash, stopped very these sounds but that Dickinson, Freedom Homes Texas crash, plane the when quickly after the of 714, 717-18 sank. —Cor- n.r.e.) (subjec- pus Christi writ ref’d William Zon This witness did know slight digestive and symptoms tive on di testimony He based gave dler. injury). of physical disorders no evidence showing Zondler Zon rect of observation of, to, knowledge reaction probable dler’s address the Zondlers’ We now The Zon after the crash. First, insist that and condition cross-points. the Zondlers to show that presented no evidence pre-judg dlers they awarded should see, in a to as position William Zondler was their Texas ment interest on airplane was, was per the witness pre-judgment interest does not allow show that They did not Co. to injury actions. Texas & N.O.R. about crash. sonal place in a sitting Carr, (1897); was William Zondler S.W. Tex. Yowell, he would have likely that Corp. Piper was Aircraft the first conscious after and been (wrongful death dam survived 462-463 sitting at (Their impact. was witness too to warrant an ages are uncertain Zondlers, v. Burk interest); plane.) Finally, Hutton back of the pre-judgment of interrog of Air Florida’s ett, (Tex.Civ.App.— in answers to two atories, stated that did they pain not know loss—the of leg, a shattered loss defamation, reputation whether William Zondler died of from a instantane loss ously liberty imprisonment in the crash or of from whether he suffered false —none compensation. of pain conscious before which has been denied his death. Goodrich, E.g., “Emotion Disturbance as a this, light put In all of we be would hard Legal Damage,” 20 MICH.L.REV. say even to there some (1921); Magruder, “Mental and Emotional support finding to that William Zondler Torts,” Disturbance in the Law of pain suffered and conscious mental an- (1936); Prosser, HARV.L.REV. 1033 “In- guish clearly before his death. We cannot Suffering tentional Infliction Mental say jury’s finding that he suffered Tort,” New 37 MICH.L.REV. against great weight pre- none is (1939). ponderance of the evidence. We overrule rule established set cross-point. the Zondlers’ second (SECOND) forth in the RESTATEMENT Accordingly, we the judgment reform § TORTS, 47(b) (1965) OF states: the trial eliminate the award for Where the actor’s tortious conduct $300,000.00 anguish fact results the invasion another Zondler awards for mental interest, legally protected as where it $50,000.00 each to William Jr. harm, bodily imposes inflicts or a con- reformed, Patrick Zondler. soAs we finement, emotional distress caused ei- judgment. affirm the by resulting ther invasion or Reformed and affirmed. may conduct be a matter to taken into be determining account in re- GUILLOT, J., dissenting. many may coverable. instances there GUILLOT, Justice, dissenting. recovery for as emotional distress additional, “parasitic” or element of dam- respectfully I majority’s dissent from the ages in an action such a tort. I because believe court should overturn longstanding au- decisions and long ago legal As as scholars re- thorize with- phenomenon. marked One called out simple in a damages “parasitic,” and ventured a negligence case. prediction proved which has be true: “The treatment of element of Various reasons have been advanced parasitic belongs essentially as a factor the unwillingness inju- to redress mental legal transitory stage A evolution. simple negligence ries in a case. One is today recognized parasit- factor which is as difficulty measuring the damages. will, forsooth, recognized ic tomorrow be as pain “Mental or anxiety,” said Lord Wens- independent liability.” basis of leydale parent long in the aof line of STREET, LI- FOUNDATIONS OF LEGAL 1861, value, decisions in “the law cannot ABILITY, (1906); Prosser, supra 470 redress, pretend and does not to when Goodrich, 510; 88; Magruder, supra at complained unlawful of act causes that supra negligent at 880. infliction of The 577, Lynch alone.” v. 9 Knight, H.L.C. process mental is in the of becom- 598; (1861). 854, 11 Eng.Rep. 863 Insofar itself, ing as just a cause of action true, generalization as the can may be infliction of such intentional be- indicated, hardly upon the reason based independent came an cause of action. namely, suffering that mental is too subtle speculative capable already to be of measure- has to Protection afforded by any tranquility variety ment standard known to the law. in a of situa- mental plaintiff’s large That a recovery example, money must be in mon- tions. For sums ey damages need cause little as for us more diffi- have been recovered false culty in imprisonment, though cases of disturbance the detention was of emotional non-peeuniary damage than in a other instance short duration and involved no 776 annoyance indignity. than already

other We have started to see a depar- Gads- Hamilton, Hospital physical den 212 injury being General v. ture from requisite a 531, (1925). Damages recovery Ala. 103 So. 553 anguish. for One injuries also been recovered for to early rejecting physical inju- decisions a cases, feelings in spe- defamation where no ry requirement case, was the Hawaii Rod- damage alleged, though cial even State, 156, Haw. 472 rigues v. 52 P.2d 509 reputation by publi- has not been hurt (1970). Following the rationale that de- Printing cation. McArthur v. News Sault cision, Supreme the California Co., 556, (1907); 148 112 126 Mich. N.W. agreed “unqualified requirement that the Tennelly, Ky. Louisville v. 105 Press Co. physical longer justifiable.” injury is 365, (1899). 49 S.W. 15 v. Hospitals, Molien Kaiser Foundation 27 Cal.Rptr. Cal.2d 616 P.2d tranquility pro- Just as mental has been Molien, (1980). recogniz- In while tected, suffering long has been a ing physical injury rule is still recognized many element courts, the court stated followed most cases, mental distress often has been the arbitrary phys- distinction between that the damage. Tennelly, substantial psychological injury “clouds the ical and remains, at 15. tendency S.W. The how- issue”; question proof. is one of real ever, to find or include other some basis determining capable Jurors are from strained—and dis- action—however to experiences own whether and to what their guise the real under an- basis plaintiff has sustained emotional extent Consequently, other name. the courts con- distress as result of the defendant’s have allowed substantial sums to be recov- Molien, P.2d at 821. duct. shock, fright, ered as humilia- tion, anguish” and other forms of “mental ap- Court Arkansas has accompanied by physical injury. whenever proved amounts for mental an- sizeable guish Greene, alone. “physical injury” may include inhala- Pitts Tiner, smoke, shock, (Ark.1964); tion of electric dust in the Tiner Oliger, eye, (Ark.1964); Peugh v. similar trivialities. Morton v. (Ark.1961). Stack, In none of these Ohio St. 170 N.E. 869 S.W.2d of mental (1930); more Philadelphia Hess cases was there Transporta- case, Co., Pitts (1984); anguish than 358 Pa. A.2d 89 shown tion Delaware, Co., wrongful death of a involving the L. 73 case Porter & W.B. girl. 17-year-old The mother testified (Sup.Ct.1906)(respec- 63 A. 860 N.J.L. go to to to work requisite pieces she went and had tively). When the home, she found, allowed; stay she full since couldn’t the dam- ages was unable to and had leave town physical injury. are not limited to the work case, times, nothing helped. The Thus, in the had Mrs. Zondler several but instant “touching picture” of learning nurse drew a how fallen to her knees of her them, visiting hospital, death, mother acted bruising she would while husband’s $300,000.00 indicating grief. The father’s an- excessive fully recovery be entitled showing he guish by the her was indicated jury awarded her redress testifying visibly upset face while This is absurd. —his and it was hard him was contorted Allowing damages as described above Pitts, 382 audible. answers. S.W.2d make argument adjusting should end the held The it was within the 909. compensation impossible award- province pecuniary jury to fix the anguish ing for mental without parents compensate the remuneration to speculative to rec- physical injury is too be grief daughter. for the the loss of their of ognized legally protected as a interest. Pitts, 382 at 909. There is no reason to resort to such subter- recognize begun them Texas fuges. It time to abandon courts have anguish of ground. independent action as an basis rest the real liability. Texas, Supreme jury Court of affirm the of for men- Schindler, the case of anguish Sanchez v. proof physical injury. tal absent of (Tex.1983), dicta, S.W.2d 249 authorized

recovery anguish proof for mental absent physical injury

of or conduct worse than

negligence. In the Baptist Hospi- case of Baber, tal Southeast Texas v. of S.W.2d 296 —Beaumont den.),

reh. Appeals the Beaumont Court followed the by holding, INDUSTRIES, Reyn- ROME INC. d/b/a Schindler, “We believe Sanchez v. Manufacturing Company olds (Tex.1983), S.W.2d 249 has now authorized McAllen, Texas, Appellant, recovery without

proof physical injury or conduct worse negligence.” Baptist than Hospital, 672 SOUTHWEST, Appellee. INTSEL see, at 299. For disapproving cases BANK, Appellant, TEXAS AMERICAN e.g., Speier College, v. Webster (Tex.1983); Duncan v. Luke Johnson Ford, Inc., (Tex.1980); 603 S.W.2d 777 SOUTHWEST, Appellee. INTSEL Brown v. Storage American & Transfer C14-84-153-CV, Nos. C14-84-323CV. Co., (Tex.1980); 601 S.W.2d 931 Hill Kimball, (Tex. 76 Tex. 13 S.W. 59 Texas, Appeals Court of App.1929, holding Comm’n approved). (14th Dist.). Houston While it is clear conflicting that there are Dec. regarding cases physi- without injury, cal this but indicates that the law on subject is in a transitory stage. I

believe adopt we should the trend that does rely on the absurdity requiring injury. Having recognized the peaceful state,

value of a the law remedy any wrong state,

should to that

it is the business of remedy the law to

deserving wrongs. danger that a host of meritless brought

claims will be deny is no reason to any genuine, serious mental

injury. As long Chief Justice Holt said as

ago objection say as 1703: “It is no multiplicity actions; occasion will multiply

if men injuries, will actions must too; multiplied for every

be man that

injured ought recompense.” his White, 938, 955,

Ashby Ray on Ld (KB

Eng.Rep.R. 1703). No.

No rule which results the denial of a

legal remedy in all cases should be retained

simply because in some cases a fictitious

injury may urged problem or a difficult proof presented. Consequently, I would

Case Details

Case Name: Air Florida, Inc. v. Zondler

Court Name: Court of Appeals of Texas

Date Published: Dec 4, 1984

Citation: 683 S.W.2d 769

Docket Number: 05-83-01261-CV

Court Abbreviation: Tex. App.