*1 I majority goes beyond cept “penal beyond believe the its traditional laws” plain ordinary meaning fraught danger. limits is with constitu- language in construing tional the words I would affirm. “penal to include proceedings laws” civil 513.607, seq., under et RSMo § 195.145.4, “pe- RSMo 1986. The words
§ laws,” IX,
nal found article 7 of the § Constitution,
Missouri have never been con- meaning applied
strued to have the broad general,
here. In the words refer to stat- spec- utes that define criminal offenses and ASARO, Appellant, Rachel ify corresponding punishment. fines and (6th Dictionary Black’s Law ed. 1979). declaring Statutes of a civil nature CARDINAL GLENNON MEMORIAL moneys property
that certain or associated HOSPITAL, al., Respondents. et activity criminal subject are to forfei- No. 72548. establishing procedure ture and a civil imposing the forfeiture are not statutes Missouri, Supreme Court of imprisonment. fines charge No criminal En Banc. filed, person’s guilt
need be no determined Nov. 1990. punishment and no imposed assessment of Rehearing As on Denial of Modified against an individual defendant to obtain Dec. laws,” “penal the forfeiture. The term IX, used in the context of article § nature, punitive
means laws are Mussallam,
remedial. See Mussallam v. N.C. S.E.2d
(construing language similar to that used Constitution). If,
in Missouri’s as the ma-
jority suggests, provisions the forfeiture purpose
were enacted for the remedial
taking profit prevent- out of crime and
ing property the use of to further criminal
activities, necessarily it follows that these penal
statutes are not laws. majority seems convinced cases
involving forfeitures under federal statutes
that our construction of the state forfeiture “penal give
statutes as laws” will not rise problems jeopardy. I am not double
nearly proper- If a so certain. law, penal may
ty is forfeited under one jail
the defendant be tried and sentenced to penal precisely
under another law based Ultimately,
the same set of facts? by state
question will not be answered courts. If those
courts but federal that the
courts use our state determination provisions “penal” and not
forfeiture are nature,
merely they may con- remedial jeopardy prohibits
clude that double prosecution. Stretching the con-
criminal *2 Stemmier, Louis, for appel-
James A. St. lant. Jr.,
Kemper Coffelt, Clayton, R. Ely, Ben Callis, Willman, Cherly Philip Robyn A. L. Fox, Rush, Louis, G. Christiana M. St. respondents. Holste, Levine,
Lori J. Carla G. Gerald Sill, City, M. Jefferson amicus curiae Hosp. Missouri Assn. Jr., Hiñe, Oliver, Cape P. L.
Jeffrey John Girardeau, Organization Missouri Lawyers. Defendant Holliger, City, R. for ami- Ronald Kansas cus MATA.
ROBERTSON, Judge. Co.,
In S.W.2d 765 Nooney Bass v. 1983), abrogated this Court permitted plaintiff without first for emotional distress traumatic showing a This case physical injury. addresses May of Bass. open issue left footnote 3 recover for emotional distress solely observing to a resulting from negli- by a party third caused may recov- gence? hold that We resulting from er for distress emotional person a third observing physical if is within zone trial judgment of the court danger. The petition for failure to dismissing plaintiff’s action affirmed. state cause I. alleges that the defen-
Rachel Asaro
dants,
health
physicians and institutional
son,
providers negligently treated
care
alleged
As a
of that
medi-
Leonard.
result
son, Asaro claims
malpractice
cal
distress and
that
suffered emotional
she
these
damages from
defendants
seeks
emotional
negligent infliction
their
dismissed
distress. The trial court
failing
to state
approved
a cause of action.
ratified and
of each other’s ac-
District,
Appeals,
The Court of
Appellant
Eastern
tions.
avers
defendants
granted
reversed
and remanded. We
negligently
provide
proper
failed
de-
jurisdiction.
transfer and have
Mo.Const.
gree of health care to her son. As a result
*3
V,
art.
severe,
appellant
§
of such failure
underwent
medically diagnosable
significant
emo-
review,
accept
On
“we
as true facts
depression.
tional distress and
pleaded,
properly
giving the averments a
construction,
making
liberal
those rea
fairly
sonable inferences
from
deductible
II.
Abrams,
the facts stated.”
Stiffelman
522,
(Mo.
1983).
655 S.W.2d
525
banc
A.
Plaintiffs
states a cause of action
recognized
This
a cause of action
Court
if
principles
its averments invoke
of sub
negligent
infliction of emotional dis-
may
plaintiff
stantive law which
entitle the
contemporaneous physical
tress without
Shapiro
v. Columbia Union Na
to relief.
Co.,
Nooney
trauma in Bass v.
646 S.W.2d
Co.,
tional Bank and Trust
576 S.W.2d
(Mo.
1983).
Bass
permits
plain-
a
banc
denied,
310,
1978),
cert.
tiff to recover for her own emotional dis-
U.S.
100 S.Ct.
performed operation. Following sur- cally significant. gery, Pennington appellant Dr. informed portion that a ring of the had not been Id. at 772-73. Pennington’s removed. report oper- of the argues initially Asaro that she a states ation, however, incorrectly stated that Bass. argu- cause of action under This ring completely fibrous removed. Bass in plaintiff ment is incorrect. The pain The child continued to suffer resulting claimed emotional distress from fainting spells pre- which marked his entrapment her own inside a stalled eleva- operative presence condition. The of the expressly tor. This Court did not decide
partial ring damage continued to Leonard’s question whether a cause action opera- heart. As a result of the incorrect “a suffers exists Missouri when report, however, appellant’s tion efforts to upon mental or emotional distress observ- help necessary obtain the further medical party ing death or to a third caused 17, 1985, January were frustrated. On Id. at negligence.” a defendant’s performed, apparently involving test was in Bass opinion n. 3. Indeed the Court’s Nouri, respondent Dr. which failed to indi- (Second) parallels the Torts Restatement presence ring. Coupled cate the of the allowing a claim for emotional distress report upon with the inaccurate which oth- “should have realized where the defendant relied, er defendants these test results led that his conduct involved an unreasonable pursue defendants’ decision not to to the causing the Restatement risk of distress.” procedures would have dis- further (Second) 313(l)(a). of Torts But this rule § presence ring. of the closed the Ultimate- bodily illness or application has “no ly, surgeon the remainder another removed is caused emo- harm of another which ring hospital February at another or arising solely distress from harm tional 25, 1985. negli- peril person, unless the to a third gence has created an Appellant’s petition further states that of the actor otherwise bodily harm to the agents named defendants acted as unreasonable risk of all the Thus, Id. Bass 313(2). is not another and that all defendants other.” for one § authority injury.”) action will cause harm or for the cause of Asaro omissions impression. suggested, a case first Yet Dean foresee- avers. This is as Prosser
ability goes
eternity,
and back
“forward
Prosser,
B.
beginning
to the
of the world.”
Revisited,
52 Mich.L.Rev.
Palsgraf
rule,
Bass,
impact
abrogated
re-
reason,
this
no
de-
For
court has
showing
quired
duty
being
with fore-
fined
coextensive
physical
per-
trauma to the
before
seeability.
initially
And
courts
have
mitting
to recover
attend-
broadly
foreseeability
spoken
stan-
about
ant emotional distress. The abandonment
duty
retreated.
dard of
have
appro-
from the
resulted
*4
priate recognition by
of two related
courts
experience is instructive.
The California
concepts:
a
can
negligent
First that
actor
right to
held that the
Dillon
induce
trauma in another without
mental
should be determined
emotional distress
second,
and
that
physical impacts,
advances
principles
the
“neutral
of
application of
diagnosis
permit
in
the
of
medical science
foreseeability, proximate cause and conse-
accuracy akin
mental trauma with
quential
generally govern tort
injury that
diagnosis
physical
the
of
trau-
available for
72,
Id.,
P.2d at
Cal.Rptr.
69
at
441
law.”
609,
Grossman,
ma.
24 N.Y.2d
Tobin v.
Doubting
ability
“predetermine
its
554,
419,
555-56,
301
249 N.E.2d
N.Y.S.2d
obligations
every
defendant’s
situation”
(1969).
potential
420-21
The extension of
foreseeability,
relying
reasonable
impact
liability beyond
announced in Bass
“court,
case-by-
left it to the
on a
Dillon
a national trend which saw
thus followed
ordinary
...
decide what the
case basis
[to]
preroga-
their
law
courts exercise
common
rea-
man
such circumstances should
under
liability
light
tive
reevaluate rules of
sonably have foreseen.” Id.
changing
advances in science and
socie-
of
standard,
not
murky
it is
Faced with this
tal norms.
appellate
surprising that
the California
rule,
impact
abrogation
the
With the
of
consistently.
apply
Dillon
courts did
liability
potential for
and new
the
extended
permitted recovery
Some decisions
alternative
causes of action arose. Two
distress, though fore
where the emotional
liability
of
arose to fill the vacuum
rules
seeable,
the
of
product
was
“a sudden
the
rule.
left
the abandonment of
event,”
Hospi
brief
Jansen v. Children’s
adopted a
Appeals
York Court of
New
22,
Center,
Cal.App.3d
106
31
tal Medical
danger
in Tobin.
zone of
standard
Califor-
883,
(1973),
Cal.Rptr.
884
and the
recovery
reasonably
permitted
nia
had
observance
a
v.
68
Legg,
in Dillon
foreseeable
Atchison,
564,
v.
19 Cal.3d
event. Justus
72,
728,
Cal.Rptr.
Tort
1977,
Su
(1969). In
the California
723
duty
a
of care to
that a tortfeasor owes
damages where
preme
“Duty,” according
Pro-
Court allowed
person injured.
to the
“percipient
a
witness
of
James,
scope
fessor
“is measured
injury.
party’s
impact”
a third
negligent
risk
conduct foresee-
which
59,
Graham,
137 Cal.
James,
19 Cal.3d
Krouse v.
Scope
Duty in
ably entails.”
of
1022,
(1977).
863, 872,
778,
1031
Cases,
Rptr.
562 P.2d
47 N.W.U.L.Rev.
Negligence
Hos
Horvath,
in Molien v. Kaiser Foundation
Lowrey v.
And
also
781
See
831,
916,
616
Cal.Rptr.
1985). (“As
167
625,
pitals, 27 Cal.3d
S.W.2d
627
689
(1980),
a hus
permitted
the court
duty
care
P.2d 813
a
of
general proposition,
diagnosis
false
recover for a
band to
negligence
law
arises
imposed by the
wife,
eliminating the
his
thus
syphilis in
there is a
in which
out
circumstances
occur-
sudden
contemporaneous,
particular acts
need for
likelihood that
foreseeable
599
requirement
recovery
rence as a
emotional distress results from reason
emotional distress.
personal, physical
injury.
able fear of
danger
permits recovery
Zone
thus
ac
159,
Court,
Superior
39 Cal.3d
Ochoa
cording
already existing
to the defendant’s
661,
(1985),
Cal.Rptr.
216
P.2d 1
703
not,
duty
plaintiff.
of care to the
It does
beginning
the retreat.
marked the
Dillon, require
as does
the defendant to
There the court
direct vic-
limited Molien’s
duty
potential
bear
new
foreseeable
tim
to circumstances which the
plaintiff.
Sanperi, 61 N.Y.2d
Bousun v.
negligence
was directed at the
843,
461 N.E.2d
847
N.Y.S.2d
plaintiff.
Chusa,
Thing
And in
v. La
Cal.Rptr.
Cal.3d
P.2d 814
(1989),
prog-
the court noted that “Dillon’s
has
levelled
Criticism
been
eny
widening
ever
have created
circles of
against
being
the zone of
rule as
Id.,
Cal.Rptr.
liability,”
at
771 P.2d
said,
arbitrary,
hopelessly
or as Dillon
arti
foreseeability
at
“is not a
ficial. It is the nature of the common law
potential liability
realistic indicator of
however,
process,
for courts to establish
afford a
does not
rational
limitation on
being
rules. Criticism of a rule as
arbi
*5
recovery,”
Id. at
771 P.2d at
and
trary is often no more than a rhetorical
judicial days
that “there are clear
on which
employed by
justify rejec
device
courts to
a court can foresee forever.” Id. at
tion of that rule. As Professor Pearson
The zone of
hold, therefore,
plain
if
that in
for emotional distress
We
Missouri
negli
tiff can show that he or she is
states a cause of action
threatened
upon
bodily
negligence
gent
harm
infliction of emotional distress
person only upon
to a
five-year-old
third
a show-
Rachel Asaro’s
son under-
(1)
ing:
surgery
that
the defendant
have went heart
to
a subaortic
should
remove
ring.
operating physician
realized that
conduct involved
fibrous
re-
his
an unrea-
ported
plaintiff,
ring
sonable risk
that all of
was removed
plain-
present
when in fact some of it remained. The son
tiff was
at the scene of an
pain
event, (3)
experienced fainting,
and other seri-
producing,
plain-
sudden
year
ous
for over a
as a result
danger, i.e.,
difficulties
placed
tiff was
zone of
the presence
ring portion.
De-
physical injury
in a
reasonable fear
physicians
spite
problems,
these
insisted
his or her
person.
own
pleadings
that all
In her
Rachel
was well.
alleges
damaged
Asaro
she was
because
D.
her
proper
denied
son
treat-
defendants
intendment,
Given its broadest
Asa
report
ment in reliance on the incorrect
petition
ro’s
not aver that
does
she was
tests,
negligently interpreted
causing endangered by
negligence
herself
frustration and emotional distress.
respondents.
appellant
While
inti
petition
Rachel Asaro’s
was dismissed
mately involved with her son’s treatment
ground
the trial court on the
of failure
at
understandably
distressed
the condi
upon
state
claim
which relief could be
health,
patient.
tion of his
was not the
she
for fail
granted. On a motion
dismiss
peril.
faced no personal
She
Her under
action,
cause of
the sole
ure
state a
solely
standable distress follows
from see
plaintiff’s petition
question
whether
ing
suffering
the harm
endured
applica
states
of action under the
a cause
facts,
young
son. Her
states no
Shapiro
Na
Columbia Union
ble law.
*6
permits
bring
might
nor
inferences as
such
Co.,
tional
and Trust
Bank
576 S.W.2d
danger
her
the zone
averments within
of
denied, 444
310,
1978),
(Mo.
cert.
312
banc
adopt today.1 Having
standard we
invoked
60,
62
40
U.S.
100 S.Ct.
L.Ed.2d
no
which would
her
substantive law
entitle
accepts
the facts
reviewing
A
court
as true
relief,
in
to
the trial court did
err
not
gives the
a
properly pleaded,
averments
dismissing
to
failure
construction,
rea
and makes those
liberal
a claim.
state
fairly
inferences
from
sonable
deductible
Abrams,
the facts stated.
Stiffelman
III.
(Mo.
1983);
Con
522
banc
655 S.W.2d
judgment
The
of the trial court
is af-
School
cerned Parents v. Caruthersville
firmed.
(Mo.
1977).
District,
The introduces that dire conse- requirement remarks to his nurse pleader a further limitation or and mother will result. authority quences to the child danger”; of “zone of it seeks father, physically threat- although not conflicting from New York and The discussions ened, suffers emotional made faints and requirement No such California. majority pos- denies physical damage. The Bass; engrafted it should now be “artificially” application sible of Bass rule to defeat the Bass this any “duty” of the doctor to majority “criti- denies petition. concedes that father, inju- denying any thus relief for his articulated in Bass.
ry law under the Goostree,
Prior to Bass in Todd v. 411 (Mo.App.1973), S.W.2d followed
implemented,
(Mo.App.
1975), the court that a com held workers’
pensation claimant who suffered emotional
shock he when discovered beneath the body of his
wheels truck crushed injured
friend and coworker was within the provided com
definition the workers’
pensation scheme. The driver of the truck being
was in no nor run over related;
were the driver never and victim
theless, emo the court found driver's compensable injury.
tional distress be a
I re submit this ease is instructive with
spect “bystander” to the treatment of also See Jeannelle
third-party claims. Inc.,
Thompson Company, Medical (E.D.Mo.1985) (Bass applied
F.Supp. 346 distress). “bystander” claim for emotional judgment
I dismis- would reverse the
sal remand this ease reinstatement plaintiff’s petition. COMPANIES, INC.,
The WILLIAMS
etc., al., Appellants, et *8 REVENUE,
DIRECTOR OF
Respondent.
No. 72352. Missouri,
Supreme Court
En Banc. 20, 1990.
Nov. Dec.
Rehearing Denied