Bowen v. Lumbermens Mutual Casualty Co.

E. Floyd Administrator of the Estate Special Bowen, Bowen, Steven W. E. Floyd Bowen Sharon A. Bowen, Plaintiffs-Appellants-Petitioners, Casualty a foreign Lumbermens Mutual Company, insurance J. corporation Elroy Rautmann,

Defendants-Respondents, a federal insurance governmental Champus/Champva, Defendant. corporation, Supreme Court 11, 1994. argument January No. 92-1728. May Oral Decided 25, 1994. (Also 432.) reported in 517 N.W.2d plaintiffs-appellants-petitioners For the there by Timothy Kelly Aiken, were briefs J. and Centofanti Scoptur, S.C., Aiken & Winter, Milwaukee and Rick argument by Timothy Manitowoc and oral J. Aiken. defendants-respondents For the there was a brief by Katt, William J. Christine M. Benson and Kasdorf, argument Swietlik, S.C., Lewis & Milwaukee and oral by William J. Katt.

SHIRLEY S.ABRAHAMSON,J. This is a review unpublished appeals of an decision of the court of filed affirming judgment 17, 1993, March of the circuit Sheboygan county, Murphy, court for John B. circuit (1) judge. The circuit court dismissed two claims: negligent Sharon Bowen's claim for infliction of severe arising viewing emotional distress from her the imme- injury, allegedly diate aftermath of her son's fatal Elroy negligence, caused defendant J. Rautmann's (2) the claim of Steven Bowen's estate for infliction of emotional distress on Steven Bowen aris- ing immediately preceding from his emotional trauma bicycle Elroy the fatal collision between his appeals Rautmann's vehicle. The court of affirmed the concluding recognized dismissal, that neither claim is part under Wisconsin law. We reverse that of the deci- appeals dismissing sion of the court of Sharon Bowen's part dismissing claim and affirm that the estate's claim. require

Both claims us to reexamine the tort of Myriad infliction of emotional distress. cir- may give cumstances rise to claims infliction of emotional distress. Sharon Bowen's claim may compels is one kind of claim that arise. Her claim "bystander" us to focus on the to a of a seriously injures negligently or kills who tortfeasor "bystander" as a shorthand We use the word another. alleges plaintiff emotional distress to a who reference physi- negligent arising of infliction from a tortfeasor's person. on third cal harm a example of kind claim is an another of

The estate's negligent infliction of emotional distress. claim for compels us to focus of the of Steven Bowen claim estate negligent pre-impact liability of a tortfeasor for the the victim dies without distress when emotional regaining consciousness. claiming negligent plaintiff a that

We conclude regardless distress, fact infliction emotional prove arises, which claim must situation (1) following elements: that the defendant's conduct fell (2) applicable care, standard of that below (3) injury, plaintiff an the defendant's suffered plaintiff's injury. of the conduct was a cause-in-fact cause-in-fact. The court deter- factfinder determines public policy whether considerations of relieve mines particular defendant of a case. These legal aspect public policy an considerations are cause, not cause-in-fact. borrowing concepts conclude, from the

We further distress, tort of intentional infliction emotional for in a cause action infliction of emotional injury plaintiff prove must is severe emo prove physical distress; tional but the need not Gehl, Alsteen manifestation of that distress. Wis. 349, 124 2d N.W.2d 312 examining

In as Sharon Bowen's claim bystander, danger we abandon the zone of and fear for safety applied this one's rules court has in earlier bystander's bystander cases. We conclude that a claim like distress, other claims for infliction of emotional distress, are governed by applicable negli- the traditional rules gence Applying actions. these rules we conclude that alleged Sharon Bowen has the elements of a cause of action for infliction of emotional distress. We public policy. now turn to considerations As we explain fully later, more three factors are critical to the legal bystander determination of cause in the fact situ- injury by First, ation. suffered the victim must have been fatal or severe. Second, the victim and the plaintiff spouses, parent-child, must be related as grandparent-grandchild siblings. Third, the extraordinary namely must have observed an event, the incident and or the scene soon after the inci- injured Applying dent with the victim at the scene. public these factors in this case to determine whether policy preclude liability, considerations we conclude by public pol- that Sharon Bowen's claim is not barred icy Accordingly, part considerations. we reverse that appeals dismissing the decision of the court of Sharon Bowen's claim and remand that cause to the circuit proceedings court for further not inconsistent with this opinion. analysis

Our of the claim of the estate leads us to although that, conclude the estate set has forth the elements of the tort of infliction of emotional may proceed grounds pub- distress, the claim policy. speculative lic likely The claim is too and would be too open way for fraudulent claims. Accord- ingly, part we affirm that of the decision of the court of appeals affirming the dismissal of the claim of the estate of Steven Bowen.

We first state the facts and then discuss each of the claims. complaint, in this case consists

The record answers, reports.1 and medical complaint, amended law questions of deciding For purposes are as accepted facts following presented, undisputed. at 12,1990, on October complaint, to the

According Rautmann, Elroy J. by 6:30 a vehicle driven p.m., about Insurance Casualty Lumbermens Mutual insured 14-year-old Steven Co., collided with negligently was Steven Bowen riding bicycle. who was his Bowen after he died in a soon fatally injured; hospital concede that Steven apparently accident. The parties time Bowen never consciousness between regained damages and his Two claims for of the accident death. at issue in this proceedings.2 are mother,

First, Bowen's Bowen, Sharon Steven dis- for emotional seeks damages the Sharon complaint, amended According tress. arrived itself; did not witness the collision she Bowen the occurred the scene a few minutes after collision at gruesome witnessed its violent and personally and her severely injured trapped She saw son aftermath. did Mutual Co. filed a brief but Lumbermens Insurance argued support file of its motion of dismissal. It not affidavits complaint forth in the that on basis of facts set negligent infliction could not be claims for a matter The circuit court refused maintained as law. supporting trial plaintiffs' consider brief affidavits timely they local were not filed under court rules. because complaint damages also for Bowen's seeks Steven death, parents' society companion wrongful for the loss of expenses, ship, pecuniary injury, property and for medical expenses. portions complaint damage and These funeral on this review. are issue pro-

beneath the defendant's car. She watched the longed attempt. complaint rescue asserts that experiences these caused Sharon Bowen extreme emo- psychic injuries accompanying physical tional and with symptoms including hysteria, insomnia, nausea and disruption family relationships. of work and apparently

Second, the estate of Steven Bowen damages seeks infliction of emotional dis- immediately prior tress on Steven Bowen to the interpret complaint collision. The estate asks us to liberally and infer that Steven Bowen was aware of the experienced anguish imminent collision and fear and prior impact. to the

Asserting that Sharon Bowen and the estate fail to upon granted, state Elroy claims which relief can be partial Rautmann and his insurer filed a motion for summary judgment. The circuit court dismissed these appeals granted claims on the merits. The court of appeal judgment Sharon Bowen leave to the non-final dismissing her claim for infliction of emo- appealed right tional distress. The estate as of the final judgment dismissing its claim. questions presented

The same of law are to this presented court as were to the circuit court and the appeals. complaint court of We review the in the same appeals, manner as the circuit court and the court of benefitting analyses opinions. from their and Plead ings liberally are to be construed, and a claim will be only quite dismissed if "it is clear that under no condi plaintiff Morgan tions can the recover." v. Pennsylvania Co., General Ins. 87 723, 731, 275 Wis. 2d (1979). complaint N.W.2d 660 The must be viewed favorably plaintiff. Accepting allega- most to the

635 a has decide whether true, we must tions as may granted. upon relief be á claim which stated requires to reexamine claim us Sharon Bowen's governing negligent of tort infliction of the case law Specifically, on the liabil- focus emotional distress. we negligently ity bystander and tortfeasor who a a injures seriously another. sup- argument in essence Sharon Bowen's

port infliction emotional of her claim for called that the court should abandon so distress is adopted danger" in 1935 "zone of rule it Waube Warrington, In 258 N.W. Wis. Elroy urge the and his insurer contrast, Rautmann hold that to the Waube line of cases and court to adhere danger, only bystander fears a who is in the zone of who physical safety, who for his her own and witnesses may relative, close the serious or death damages tortfeasor for recover from injuries. leading physical agree parties not in that Sharon Bowen was danger, that did not fear for her the zone of she safety, personal own and she did witness hitting her defendant's vehicle son. We conclude effectively danger the zone of rule this court abandoned City Berlin, in Garrett v. New 122 Wis. 2d (1985), today formally it.3 N.W.2d 137 we forsake commentary review the tort of There extensive law See, emotional distress and the case law. e.g., Page Keeton, Dobbs, cited B. articles at W. Dan Robert Keeton, Owen, E. David G. Prosser and Keeton on the Law of (5th Torts, p. 360, supplement sec. 54 at n.10 ed. 1984 1988).

A. The tort of infliction of emotional dis- many has tress troubled this court and other for courts appraisal years. today Our decision demands an of the evolution of our cases on infliction of emo- especially arising distress, tional those over the almost years bystander's our 60 since discussion of a claim in Warrington, Waube v. (1935).4 216 Wis. 603, 258 N.W. 497 see, e.g., For commentary, more recent Michael K. Steen- son, Anatomy Minnesota, The Emotional Distress Claims in of (1993); Marrs, 19 Wm. Mitch. L. Rev. 1 Scott D. Mind Over Body: Regarding Physical Injury Requirement Trends Negligent Emotional Distress and "Fear Disease" Infliction of of Cases, (1992); Calandrella, 28 Tort & Ins. L.J. 1 Paul V. Safe Danger Haven a Troubled Tort: A to the Return Zone for of for Negligent Distress, Emotional 26 Suffolk U. L. Infliction of (1992); Greenberg, Negligent Rev. 79 A. Julie Emo- Infliction of Proposal Theory A tional Distress: Consistent Tort for Victims, Recovery Bystanders Pepperdine and Direct L. for (1992); Drawing Michael Phillips, Rev. the Line: Missouri Adopts Danger Bystander the Zone Rule Emotional Dis- for tress, (1991); George VanDeWeghe, Jr., 56 Mo. L. Rev. 1183 W. Bystander to Struggle Continues with Claims California for Negligent Chusa, Thing Emotional Distress: v. La Infliction of (L.A.) Loyola (1990); Lo, Thing L. Rev. 89 Thomas J. v. La Policy Bystander Chusa—Public Demands a Limitation on the Recovery Distress, Emotional 17 Western St. U. for Infliction (1990); Scott, Proving Beyond L. Rev. 499 Michele A. A Reason- Distress, Negligent Doubt: able Emotional Infliction of L. Cardozo Rev. 235 4For discussions of the tort emo see, Wisconsin, e.g., Eiche, tional Stuart B. Right Common Law Treatment in Wisconsin the to Recover for Harm, 1089;

Emotional 1977 Wis. E. Flanagan, L. Rev. John Negligent Distress: A Proposal Emotional a Rec- Infliction of been and other courts have this court

Historically for emotional suffer- plaintiffs to compensate reluctant for compensate are to willing While courts ing. in a tradi- to physical injury harm incident emotional action, been loath to they recognize tort have tional harm alone. The common to emotional recover right Emotional suffer- distrusted emotion.5 historically law it only and if was genuine deemed ing compensable was in a claim an provable physical with associated tort cause of action.6 accepted by courts of the torts of

The treatment disparate negli- of emotional distress and intentional infliction of illustrates this infliction gent of authenticating with claims emotional dis- concern for intentional recognizes Wisconsin claim tress. Action, Tort ognized (1984); L. 557 John Marq. 67 Rev. A. Impact City Garrett v. New Berlin on Wis- Goldstein, Approach Negligent to Emotional Distress consin's Infliction of Change, Fundamental Doctrinal and Recommendation for 75 (1992). Marq. L. Rev. 467 commentary has been of our and has critical cases arbitrary apply

urged to abandon standards and the court negligence approach to the tort. traditional 5The tort of intentional infliction of emotional distress was Gehl, 1963. Alsteen v. recognized until 21 not in Wisconsin Wis. (1963). 349, 124 permitted 312 A wife to 2d N.W.2d was sue Moran v. for the loss of consortium of her husband until 1967. Co., Quality Casting Aluminum 542, 150 34 2d Wis. N.W.2d 137 (1967). society companionship involving par Loss claims recognized ents were not minor children until 1974. Prier, Shockley v. (1975). 394, 225 2dWis. N.W.2d 495 6 See, e.g., Corp., v. Rennick 2d 82 Wis. Fruehauf Dore, (1978); Redepenning 804-05, 264 N.W.2d 264 56 Wis. (1972); Vinicky v. Midland Casu 129, 143, 2d 201 N.W.2d 580 Co., alty Ins. (1967). 246, 253, 151 35 Wis. 2d N.W.2d 77 Gehl, Wis. infliction emotional distress. Alsteen v. 2d As court N.W.2d this noted evidentiary problems proof Alsteen, at root were compensate of the common law's hesitance emo- physical injury. Alsteen, tional harm in the absence of 21 Wis. 2d at 358. The elements of the tort of inten- tional emotional distress set forth in part guarantee Alsteen were devised authen- ticity plaintiffs plaintiff recover, of the To claim. prove would have to the defendant intended to cause emotional distress and did cause severe emo- Perhaps important, tional distress. more prove would have to the that defendant's conduct judged outrageous by "average would be extreme or an community." Alsteen, of the member 21 Wis. 2d at 359. gross probable "If the conduct is and extreme it is more plaintiff did, fact, that the suffer dis- the emotional alleged." Alsteen, tress 2d at Wis. 360. struggled hand,

On the other have the courts with negligent distress, tort of infliction of emotional con- negligent adequately cerned the conduct did not authenticity plaintiffs assure the of the claim of severe historically appre- emotional harm. Courts been have psychological injuries easy hensive that would be feign brought and that suits would be for trivial emo- dependent peculiar tional distress more the on upon emotional sensitivities of the than the People nature the not, tortfeasor's conduct. should everyday courts able to for reasoned, be sue minor dis- opening turbances. Furthermore courts feared that courts to claims for infliction of emotional open floodgates litigation distress would lead to unlimited for a tortfeasor. acknowledged jus- courts Nevertheless have requires recognition negligently tice of some claims various harm. Courts have devised

inflicted emotional plaintiffs compensatory interests to balance a criteria judicial interests of the distress with the for emotional authenticating system preventing unlim- claims and liability for the tortfeasor. ited adopted example,

For some state courts plaintiffs "impact could recover for rule" under which only when emotional contemporaneous physical injury they had suffered impact impact person. physical rule their was on bright However, satisfy line. fact situations inevi- viewed as a requirements tably of the arose that did justice though impact for com- even seemed call rule pensation. situations, In those fact some courts concepts physical injury stretched the impact. inventive, less the rule Where courts were unsatisfactory plaintiffs proved it from because barred they recovering causal link even when could establish a negligence plaintiffs defendant’s and the between the repudiated injury.7 impact Wisconsin rule.8 see W. Keeton, jurisdictions, Page from For cases other Dobbs, Keeton, Owen, E. Prosser and

Dan B. Robert David G. (5th 1984). Torts, pp. on Law of at 363-64 ed. Keeton sec. 54 early impact, For a Wisconsin case discussion of law see, Hinley, e.g., Pankropf v. 146, 123 (1909), 141 Wis. 625 N.W. carriage in left the road because of the which horse-drawn plaintiff negligence of the defendant automobile driver. The passenger severely frightened miscarriage. and was suffered a plaintiff, concluding The court held for the that the defendant's in negligence in motion the chain of events that ended mis set carriage. prior in cases The court concluded that Wisconsin "the defendant, proxi negligent act of the was relied on as the which subsequent physical injuries [did not] mate cause of the consist contact, physical only of or hostile but consisted of a violence wrongful fright produced or act which or extreme 640 impact Dissatisfaction with the rule to its rejec- led tion in favor zone danger of the rule.9 The of zone rule on danger is based tort law's familiar concepts If the duty foreseeability. from a injury resulting act can reasonably careless be foreseen by actor, there is no has legal liability because the actor shock, fright physical injuries from which extreme shock naturally resulted." concluding more physical impact

For recent cases not needed in for Wisconsin infliction of emotional see, distress, e.g., Warrington, v. 606-08, Waube 216 Wis. (1935) impact 258 ("[requiring N.W. 497 actual for a by negligence] repudiated recover nervous shock caused was jurisdictions, in including Wisconsin, a number of in situations fright impact produced physical injuries."); where without Colla (1957) ("recov Mandella, 594, 597, 1 v. Wis. 2d 85 N.W.2d 345 ery is not defeated here the fact that there was no direct physical impact of plaintiffs] [defendant's] truck on [the person. away getting The courts are requirement from the physical impact fright cases, sustain and shock majority no longer require impact, while those courts impact requirement go very finding which retain the far contact."); impact Hagen sufficient from the most trivial Ver v. ("this (1970) Gibbons, 220, 225, 177 47 2d juris Wis. N.W.2d 83 "). requirement impact diction has abandoned the 9Apparently majority jurisdictions as of 1987 the have considered infliction of emotional distress on bystander adopted danger approach. have zone Gillman (N.D. Co., Burlington Supp. 913, F. Northern R. n.1 1987). Ill. jurisdictions

But several have abandoned the zone of dan- ger Speiser, Krause, rule. See Stuart M. Charles F. W. Alfred Gans, 16:25-16:26, pp. The American Law of Torts secs 1119-1126; Page Keeton, Dobbs, Keeton, W. B. E. Dan Robert Owen, Torts, David G. Prosser and Keeton the Law of sec. (5th 1984). p. at ed. injured injured person; duty the no to the

breached person simply risk. the zone of foreseeable outside is danger adopted the zone of court The Wisconsin liability negligent limiting of emo- for rule Warrington, Wis. Waube tional distress (1935), bystander repre- Waube case.10 258 N.W. attempt grapple two first to with this court's sented problems major, in the tort interrelated authenticating the of emotional distress: infliction plaintiffs avoiding for the claim and unlimited tortfeasor. Supreme Court concluded

In the Waube Wisconsin with) (or physical impact physical to harm prox- plaintiffs required but that was imity to conduct could serve to the tortious plaintiffs of emotional distress. claim authenticate they if emotional distress Plaintiffs could recover for they danger physical impact, is, if were were in danger. however, court, The the zone Waube within recovery from a to a mother who watched win- denied highway her child as her child crossed a and saw dow though negligently killed a vehicle. Even Mrs. danger is forth in 2 Restatement The zone of rule set (Second) (2) (1965). sec. 313 of Torts (1934) specif- p. of Torts sec. first Restatement recovery for ically proposed regarding no rule resulting parent or spouse distress and to who injury-causing pro- The section witnessed act. expresses opinion no to part: vided "Caveat: Institute as involving is as an whether an actor whose conduct causing bodily spouse unreasonable risk harm a child or bodily parent or liable for an illness other harm caused or spouse spouse peril or child or who witnesses the harm the anxiety thereby legal suffers or shock which is cause parent's spouse's bodily illness or other harm." hysterical, sick extremely pros- Waube "became trated shock and through fright, excessive sudden disturbances which immediately emotional caused her (and to take to her bed" die), to 216 Wis. subsequently at 603-04, she unable to Her was recover. by

distress was caused fear for the only safety another she had been outside the person; zone danger.11

The Waube court derived this notion of the zone of Palsgraf from danger Judge Benjamin opinion Cardozo's in Railroad, Island Long 248 N.Y. 162 N.E. (1928). 99 analytical This the approach focused on the "foreseeability" of harm and the duty owed the Waube defendant to to specific plaintiffs. According court, the tortfeasor's was to use "duty ordinary care avoid those who would be in put Waube v. Warrington, 612. physical peril." Wis. at Waube, limited, Since subsequent decisions have rule, refined undermined zone danger the but until today of the court not majority has expressly it. abandoned

The Waube zone rule danger was recharacter- Klassa v. Milwaukee ized but in ultimately affirmed Co., Gas Light 273 Wis. In N.W.2d Klassa defendant’s employees the caused a negligently minor the basement of the home. explosion Klassa 273 Wis. 180. At the time at the Klassa explosion basement; children were Mrs. Klassa was in the room basement and ran into the Her laundry backyard. sister was and also upstairs went outdoors. Mrs. her Klassa's and sister's claims were based on injuries case, In sought the Waube Mr. Waube to recover for the wrongful death of his Mr. wife. Waube could not recover unless

his wife would have been able to maintain action an for her own injuries Waube, she had lived. 216 Wis. at 605. about fright of shock and were the result

that defendant asserted that children. The of the safety from the origi- did not stem fright shock and plaintiffs' discovery from their that but rather explosion nal facts, On these in the basement. children were rule, barring the zone of danger Klassa court narrowed could prove only recovery plaintiffs unless their emotional dis- had caused negligence tortfeasor's for their they safety. had feared own tress but also to harmonize Waube's The Klassa court attempted approach the Wisconsin to the danger rule with zone s of Palsgraf renouncing concept by law of negligence to be negligent Wisconsin law considers conduct duty. In anyone. a of harm to it foreseeable risk if involves the the of doc- Wisconsin, public policy, doctrine the defendant's duty, scope of limits the of trine The Klassa court concluded that "whenever liability.12 12 Montgomery, v. 372 Osborne In 203 Wis. 234 N.W. opinion Judge of (1931), adopted dissenting the the court Palsgraf foreseeability: concept duty on the of and Andrews in refraining "Every large duty from one owes to the world at unreasonably safety of may threaten the others those acts that wronged might reasonably be only is he to whom harm .... Not injured, he in even if he result, but also who is fact expected to generally thought danger to be the be outside what would be Palsgraf, 248 at 350. The Osborne court made zone . . .." N.Y. foreseeability limiting liability on the basis of was a clear that court, "Any operates question stating: rule which of law for judicial liability wrongful for a act must be derived from to limit by capable policy any defined and its limits cannot be formula application but must rest in the sound discretion of automatic at the court." 203 Wis. 237. Schilling Stockel, 525, 531, 133

In 2d Wis. N.W.2d (1965), rejection no-duty court traced the of "the formula of Theater, Gateway Palsgraf v. Standard and Waube" to Pfeifer Inc., 262 Wis. 55 N.W.2d 29 court Pfeifer a court holds that a certain act does not constitute negligence duty because there nowas owed the actor injured party, although complained to the the act injury, making policy caused the such court deter- (emphasis Klassa, mination." at 183 Wis. original). re-interpreted Thus, the Klassa court Waube grounded upon public policy as considerations rather upon concepts foreseeability duty.13 than public policy Klassa's formulation is a more realistic description of how Wisconsin courts decide whether to impose liability upon tortfeasor than the foreseeability Palsgraf formulation in and Waube.14 years supreme later,

Fourteen the Wisconsin court appended another element the tort of Hagen infliction of emotional distress. In Ver v. Gib (1970), bons, 47 220, 227, Wis. 2d 177 N.W.2d 83 [I]n stated:" cases so it extreme that would shock the conscience society impose liability, may step courts hold as liability."

a matter of law that there is no atWis. 238. 13Although the Waube court concluded defendant plaintiff, duty public owed no to the policy it also discussed liability. limiting considerations court Waube stated "wholly would be of proportion culpabil out to the ity tort-feasor, put would an unreasonable burden upon highway, open claims, the way users of the to fraudulent and just enter a field that has or stopping point." no sensible 273 Wis. at 613. 14 (Second) 435(2) Torts, (1965), The Restatement sec. provides cutting off liability "highly because extraordi e, nary" p. recognizes harm. Comment principle this as follows: impossible any by "It is to state definite rules which it can be particular

determined that a result of the actor's conduct highly extraordinary prevent is is or not so toas the conduct from being legal judgment a cause of that result. This a matter for the event, therefore, court the formulated after the with the knowledge produced." of the effect was negligent infliction of in a claim for court clarified that "emotional distress must be distress the emotional injuries."15 by physical contrast, In seven manifested Hagen years decided, had was the court before Ver physical symptoms of no emotional dis concluded that recovery required for for intentional tress were Gehl, 21 Wis. Alsteen v. infliction of emotional distress. 349, 124 2d N.W.2d courts "now court had concluded that Alsteen intelligently could] whereby [they

possess [ed] tools . . .." Alsteen evaluate claims of emotional Nevertheless, at over the vociferous dis- Wis. 2d 359. Hagen justices, court insisted that of three the Ver sent alleged plaintiff negligent, opposed to inten- a as who have to tional, infliction of emotional distress would physical of the emotional demonstrate manifestations Unlike intentional infliction emotional dis- distress. outrageous conduct itself tress, where defendant's plaintiffs emotional could serve to authenticate negligently distress, court concluded that inflicted by only could be authenticated emotional distress symptoms. existence of dissenting justices Hagen argued, in Ver The three drawing however, that the court was untenable distinc- actions. tions between intentional logic longer any "There is no reason in or in fact to distinguish intentional or between equally Both are difficult emotional distress. prove. compel recovery injury results, Both should if be purely partly physical.... damage it emotional Hagen In Ver allegedly the defendant constructed faulty causing dwelling fireplace dwelling, be con alleged sumed fire. The severe resulting safety fleeing burning from his fear for his while home.

646 equally applied." Hagen, real whatever name is Ver 47 Wis. 2d at 228. problematic,

Equally Hagen the Ver did court not physical define which manifestations of emotional dis- permit recovery. defining physical fact, tress would In proven resulting perplexing manifestation has a task, disparate symptoms juris- in classifications of across physical Over time, dictions.16 manifestation requirement proved unsatisfactory because it could deny recovery person genuinely even when a suffered began severe emotional As result, distress. a the court exceptions physical to carve out to the manifestation requirement. example, Mosher, For La Fleur 109 (1982), 14-year-old girl 2d 112, Wis. 325 N.W.2d 314 negligently jail was confined in a cell hours with- physical out food water but no suffered majority manifestations of her emotional distress. by concluded that confinement its nature guarantee plaintiffs would act aas severe Hagen The Ver dissenters asserted that "severe mental disturbances are always type almost characterized some physical frequently only plead reaction and it is an accident ing consequences complained adverse of are physical." characterized as mental rather than 47 Wis. 2d at 229. City Berlin, Garrett v. justices New three Wis. 235-36, retaining physical

2d at require- manifestation ment, physical They did symptom. not demand severe viewed coupled that "insomnia with physical may some other symptom sufficient," be 122 Wis. 2d at that "hysteria" recog- is a physical nized manifestation of emotional distress. 122 Wis. 2d at 236.

Cases are consistent in evaluating symptoms what qualify manifestations. See W. Keeton, as Page Dan B. Dobbs, Keeton, Owen, Robert E. David G. Prosser and Keeton (5th 1984). Torts, p. the Law of sec. 54 at ed. declaring genuine, thus an distress was

emotional Hagen emerging exception trend Ver rule.17 The to the requirement appears to be to abolish in other states injury.18 physical of a summary, 1984, as of these Wisconsin cases had

In bystanders that for to recover established plaintiffs distress, must of emotional (1) (2) danger; they prove that were in the zone of (3) safety; they and their feared for their own resulting accompanying or distress had an injury. physical City Berlin, 122 New 1985, In with Garrett (1985), the first two 2d 362 N.W.2d 137

Wis. requirements bystander's claim for for a began claim to erode. In infliction of emotional distress presented sympathetic facts Garrett the court was with apparently distress, the first severe emotional but and infliction of emo- two elements of claim for Thirteen-year-old lacking. were tional distress Raymond 14-year-old Garrett and his sister Connie watching an outdoor movie. Connie was Garrett were leaning edge against a fence at the the theater Raymond away lying grounds. 15 feet on a was about city squad police p.m. At 10:45 car blanket. about swept spotlight accelerated the fence area with its Driving pursuit of the children observed. without

17 In La Fleur requirement court characterized as proof manifestation of emotional distress based on Mosher, public policy. La Fleur v. 112, 118, 109 Wis. 2d (1982). N.W.2d Body: Regarding Mind Marrs, Over Trends D. Scott Physical Injury Requirement Negligent Emo Infliction of Cases, Distress "Fear Disease" tional 28 Tort & Ins. L.J. headlights, Raymond causing the officer ran over injuries. permanent severe and Ray- squad

Connie watched the car drive over bloody mond. She ran him and saw his twisted and legs. Although physical injuries Connie sustained no as a result of the collision and never feared for her own safety, Garrett, 122 at 226-27, Wis. 2d she sued the city, seeking theater owner and the to recover for the alleged severe emotional shock and distress she suf- witnessing of fered as a result of the infliction injury. justices inappo- Three concluded that Waube was facts, on its site and thus the decision be need not applied, justices modified, or abandoned. These charac- plaintiff terized the as an Waube observer who was directly they not involved in the contrast, incident. In participant characterized Connie as Garrett a in the negligently incident who was entitled to recover for though inflicted emotional distress even she had safety, for her own feared had not suffered a symptom any of her distress more severe than insom- danger. nia, and had not been in the zone of justices conceding any change The held, without bystander's of the elements a claim inflic- public policy distress, tion of emotional that preclude did not considerations Connie from maintain- ing her of cause action for emotional distress. Connie sibling was a close relative —a observed vic- —who vantage nearby point tim's traumatic from a and injuries pain. his Garrett, observed and 122 Wis. 2d at justices allowing 234. The three then concluded that likely "open way Connie to recover would not be for fraudulent claims or enter ... a field with no sensi- stopping point." Garrett, ble 122 Wis. 2d at 234. criticizing justices united in the Garrett were

Four attempt distinguish from plurality's case Waube. calling justice to the ele- dissented, for adherence One negligent infliction of emotional distress ments by the court over had been hammered out that claim century.19 previous half plu- remaining justices concurred in the three expressly rality's overruled but would have mandate danger rule as hav- abandoned the zone Waube negligence ing place law. The in modern Wisconsin no opinion concurring eliminated the have also would requirement his or her own that fear for negligently safety inflicted would have held "regardless compensable phys- subsequently [is] this emotional distress whether ically Garrett, 122 Wis. 2d at 240.20 manifested." concurring replacing justices advocated requirements Hagen Klassa, for claims Waube, and Ver of emotional distress with the negligence. justices These concluded usual rules negligence, requisite sequence causa- "if there is damages physical, emotional, or tion, and —whether liability." ordinarily Garrett, 122 should be both —there liability imposed be 2d 241. Whether should Wis. at 19Furthermore, pointed plurality justice out that the the public policy the considerations that circumvented several of danger for the zone of rule. These considerations were the basis by injury recovery Connie Garrett: the was too precluded negligence, proportion was out of to from the the remote negligent tortfeasor, way open of was for culpability just claims, stopping point and no sensible or was fraudulent Berlin, 2d City v. New 122 Wis. at 245-46. set. Garrett of 20 concurring opinion approach took the of the dissent Gibbons, 228, Hagen in Ver 47 Wis. 2d 177 N.W.2d 83 (1970) (Wilkie, dissenting). J. public

should be determined case case, on based policy Garrett, considerations. 122 Wis. 2d at 242. justices

Thus, six in Garrett concluded that they recognized, recover, should but also explicitly implicitly, existing governing or rules negligent the tort of of infliction

bystander plaintiffs would bar the claim. Three of recovery, clinging them allowed in form but not in sub- negligent stance to the traditional elements of this of infliction urged emotional distress claim.21 The other three Waube, Klassa, reconsideration of the and Ver Hagen bystander may cases to determine whether a negligent recover for infliction of emotional distress. history

This of the court's decisions in emotional distress cases demonstrates problem danger with the zone doctrine: while it appears allay apprehension opening to the court's the doors to trivial fraudulent claims and unlim- liability rigid ited for a tortfeasor, its application prevents deserving redress in Its cases. companion safety physi- rules of fear for one's own and cal manifestation of emotional distress have the same effect. nearly years court decisions since Waube rigid

demonstrate doctrinal limitations on bystanders produce arbitrary, incongruous substantially indefensible results. Plaintiffs in Mikkelson, See also Westcott v. 148 Wis. 2d (Ct. 1988) the Garrett App. (applying N.W.2d analysis participant object activity of tortious to a mother who sued physician infliction of emotional distress result ing alleged from negligent delivery of her child and the death child). These differently.22 treated have been

same position in the law court to sow confusion have led the defects in La Fleur and Garrett. the rules as circumventing B. for evalu- courts need a framework

Claimants and claims of a ating bystander's The should be free framework emotional distress. rules, should artificial, yet and inconsistent vague inflicted to recover for negligently allow plaintiffs tortfeasors protecting distress while severe emotional minor claims, concerning from claims from spurious dis- shocks, and from and emotional psychic to culpability. proportionate of a tort conclude that the traditional elements

We conduct, causation and action in negligence — distress)23 (here serve severe —should Waube, Garrett, plaintiffs in were not in The Klassa safety. plaintiffs for their own in Garrett and Waube fear danger; in in the zone of Klassa was were not arguably building explosion in the at the time and was Garrett, Waube, danger. plaintiffs zone of In Klassa and plaintiff leaving incidents first hand. Klassa witnessed the building clearly "participant" burning was more than Connie plaintiffs recover, Yet the Klassa and Waube did not Garrett. while Connie Garrett did. requirement We borrow the of severe emotional distress tort from the of intentional infliction emotional distress. See Gehl, Alsteen v. 21 Wis. 2d at 360-61. See also Restatement (Second) Torts, j, p. sec. comment attempts define actionable severe emotional distress the tort of inten tional infliction emotional distress as follows: "Emotional names, passes suffering, under various such as mental anguish, shock, mental mental or nervous like. It highly unpleasant reactions, all fright, includes mental such as evaluating bystander's as the framework for claim of negligent infliction of emotional distress. Like the con- justices curring Garrett, in we conclude that these limiting liability elements, when combined with based public policy provide considerations, a better alter- evaluating bystander's native claim than do the danger safety zone of and fear for one’s rules.

We conclude, further as we did Alsteen with respect to intentional infliction of distress, emotional that a claimant for infliction of emotional prove physical not distress need manifestation severe emotional distress. We do so for several reasons. physical First, seen, as we have manifestation requirement recovery has denied for serious emotional accompanied by physical symptoms. distress Sec- given present ond, science, state of medical emotional distress can be established means other proof physical although than Third, it manifestation. designed against was feigned to ensure manufactured or physical require-

claims, the manifestation encouraged extravagant pleading, ment has testimony, distorted meaningless distinctions between symptoms. and emotional Detection false adversary process. Finally, claims is best left to the we predicted deluge litiga- can no find evidence that the horror, shame, grief, humiliation, embarrassment, anger, cha- grin, disappointment, worry only and nausea. It is where is it Complete extreme that tranquil- arises. ity is world, degree seldom attainable this and some part price transient and trivial emotional is of the living among people. only law intervenes where the distress so expected severe that no reasonable man could be endure it." either that have abandoned occurred in states

tion has danger physical manifestation rule. zone of C. complaint has Bowen's set hold that Sharon

We of of action for forth the elements a cause negligent conduct, cau- of emotional distress: infliction (severe distress). It does sation, and necessarily follow, the claim must be however, that may go as decide, A court a matter forward. allowed public policy require of dis- law, of that considerations policy public claim. These considerations missal of the legal although part aspect of cause, not a an of are determination cause-in-fact. application public policy considerations is solely generally it is better

function procedure the court. While negligence and

to submit cause-in-fact legal jury addressing is, cause, to the before issues public policy Bydalek, 2d issues, Padilla v. 56 Wis. (1973), v. 779-80, 203 N.W.2d 15 Standard Pfeifer Gateway Inc., 262 29 229, 240, 55 Wis. N.W.2d Theater (1952), grant may sum the circuit court this court mary grounds judgment public policy on before a trial24 may public policy or a court bar considera pleadings present When the tions after trial.25 policy, may question public the court make its deter- 24 Co., Chicago Railway v. & North Western 48 Wis. 2d Hass Mandella, 326-27, Colla v. (1970); 179 N.W.2d 885 Wis. (1957). 594, 85 2d N.W.2d Milwaukee, Coffey 526, 542, 247 2dWis. N.W.2d 132 public grounds policy initiation on before trial.26 In complex contrast, when issues are or the factual may attenuated, connections it for a full be desirable precede trial to the court's determination. determining public policy

In this this court case is presented considerations before trial because facts simple, question public policy are and because is fully presented by complaint and the motion to question under circum- whether, dismiss. public policy case, stances of this it contravenes permit Sharon Bowen to recover for severe emotional distress.

Historically, the tort of emo- (1) establishing tional distress has raised two concerns: (2) authenticity ensuring of the claim and fairness of placed upon the financial burden a defendant whose negligent. conduct was A court deals with con- these by exploring public policy cerns in each such case (1) injury considerations as: whether the is too remote (2) negligence; injury wholly from whether the is proportion culpability negligent out to the of the (3) retrospect appears in tortfeasor; whether it too extraordinary negligence brought that the should have (4) recovery harm; about the whether allowance of place would an unreasonable burden (5) recovery tortfeasor; whether allowance would be (6) likely open way too to to claims; fraudulent or recovery whether allowance would enter a field that just stopping point. has no sensible The court has Chicago Co., Railway 26 Hassv. & North Western 48 Wis. 2d Milwaukee, (1970); Coffey v. 321, 326-27, 179 N.W.2d 885 74 Morgan v. Penn 526, 541-43, (1976); 2d Wis. 247 N.W.2d 132 Co., sylvania Ins. General 723, 737-738, 87 Wis. 2d 275 N.W.2d 660 655 pre may considerations that policy these public stated it follows: When form as capsule clude liabil society impose shock conscience would that there is as a matter of law courts hold may ity, Theatre, 262 Gateway v. Standard liability. no Pfeifer (1952).27 29 229, 238, 55 N.W.2d Wis. infliction at bar involves The case We therefore dis- bystander. on a to the considerations policy applicable cuss the public of emotional distress this tort of fact situation. that factors, together, help

Three taken assure recovery is genuine, allowing claim in this case an burden upon unreasonable likely place con- will not defendant, recovery and that allowance we have the other considerations public policy travene set forth. or killed.

First, injured the victim was seriously in this case Bowen's severe emotional distress Sharon A person. from the fatal of another fatal injury stems reasonable person or a injury be to cause severe expected view as serious can would 27 see, e,g., considerations, discussing policy public For cases Theater, Inc., Gateway 229, v. Standard 55 262 Wis. Pfeifer Co., Light (1952); Klassa v. Milwaukee Gas N.W.2d 29 273 Wis. Mandella, (1956); Colla v. 176, 183, 2d 77 N.W.2d 397 1 Wis. Co., (1957); Longberg v. Green 594, 598, H.L. 85 N.W.2d 345 15 Stockel, (1962); Schilling v. 505, 516, 113 2d N.W.2d 129 Wis. Chicago 525, (1965); Hass v. 531-534, 2d N.W.2d 335 Wis. Co., Railway & North Western 2d 48 Wis. 326 — Inc., Hospital, (1970); Howard v. Mt. Sinai N.W.2d 885 63 Wis. Milwaukee, (1974); Coffey 515, 518-19, 217 2d N.W.2d Wulf, Stewart v. 526, 541, (1976); Wis. 2d 247 N.W.2d 132 Morgan (1978); v. Penn Wis. 2d 271 N.W.2d 79 sylvania, 723, 737-738, 275 2dWis. N.W.2d 660 distress to Less bystander. a serious harm to a victim would not result in ordinarily severe emotional distress to a reasonable bystander average sensitivity. the

Second, was the victim's mother. plaintiff Sharon severe Bowen's emotional distress this case from the fact the injured stems that victim was fatally her 14-year-old son. court concludes that may tortfeasor be held liable for negligent infliction of emotional distress on a who is bystander spouse, the child, grandparent, grandchild sibling or of the parent, agree victim. We that emotional trauma accom- may the or pany death less connected intimately friends, such as or persons acquaintances, passersby. Nevertheless, that flows from suffering beholding child, or death of agony spouse, parent, grandpar- ent, in human grandchild sibling unique and experience such harm to a plaintiffs is so and tranquility serious as to warrant compelling compensation.28 Limiting those recovery plaintiffs who have the with the specified family relationships acknowledges special victim of close fam- qualities ily a reasonable limit on the relationships, yet places of the tortfeasor. an

Third, plaintiff observed extraordinary event. Sharon severe emotional Bowen's case from her on the this stems scene of a arriving serious accident minutes after it occurred seeing son 14-year-old fatally injured her in the entangled opinion The author of the recovery would allow when the plaintiff prove one, is, victim can is a loved when relationship analogous and the victim have a to one relationships specified. causing Witnessing

wreckage.29 either an incident gruesome of or the aftermath or death serious it occurs is an extraordi- an minutes after such event experience nary experience, of from the distinct through learning family indirect a member's death of place appropriate to line it an draw the Thus is means. non-recoverable claims. recoverable and between of emotional dis- of The tort designed compensate all is not tress expect everyday life. All of us can at least of traumas injury or to be informed of the serious once in our lives family spouse, par- a of as death a close member such grandchild, sibling, perhaps grandparent, or ent, child, negligence Although the of another. shock due to the great, grief growing it not out of such news is is and compensable under tort emotional distress this The distinction between on the one hand wit- action.30 nessing gruesome or the aftermath of the incident it serious minutes after occurs and on accident experience learning family of the other hand the through appropri- indirect means is an member's death place the line recoverable and non- ate to draw between claims. recoverable requirement observe the incident permissively by some courts others. W.

construed and Keeton, Owen, Keeton, Dobbs, Page Dan B. Robert E. David G. Torts, p. Prosser and Keeton on the Law of sec. 54 at n.73 (5th 1984), p. Supp. ed. Immediacy Injury See also Observation as Annot., Affecting Right Damages to Recover Shock Mental Witnessing

Anguish Injury Another, A.L.R.4th from circumstances, appropriate course, 30 Under certain indi society claim companionship. viduals can loss The tort of infliction of emotional dis- compensates plaintiffs whose tress natural shock and grief upon physical injury the death or severe parent, spouse, grandchild, grandparent, child, or sib- ling compounded by are the circumstances under they injury which learn the serious or death. This example, intensity reflects, tort for the emotional seeing distress that can result from the incident caus- ing injury the serious or death first hand or from coming gruesome upon the scene minutes later. Elroy responsible

To hold Rautmann for Sharon injury Bowen's proportion is neither too remote from nor out of allegedly negligent driving,

to his nor in retrospect appear extraordinary does it too that such brought negligence should have about the harm. It is parent not unusual for a suffer to severe emotional upon viewing causing an accident the death of upon viewing severely a child or its aftermath with the injured entangled wreckage. child in the

Allowing recovery Sharon to seek Bowen for her suffering severe emotional under the circumstances place alleged does an the unreasonable burden on tortfeasor in case. here, this The like circumstances the genuineness guarantee Fleur, circumstances in La Sharon Bowen's emotional distress.31 Sharon shocking agonizing Bowen's ordeal nowas less or than participant" if she had been "Garrett who had wit- impact. allowing nessed Thus Sharon Bowen to specter recover does not raise the of unlimited for tortfeasors.

Contrary Elroy argument, Rautmann's there is, point stopping liability. then, a to a tortfeasor's The Co., See also Hawes Germantown Mut. Ins. 103 Wis. 2d (Ct. Dore, Redepenning v. App. 1981); 309 N.W.2d 356 129, 143, 2d Wis. N.W.2d 580 or loss of harm from the serious emotional grandparent, grandchild spouse, parent, or sib- child, ling compensated in this tort. not the harm injured seeing the life of an efforts to save shock of spouse hospital, example, will for in an ambulance or experience compensated it is a life because not be compensable may expect serious to endure. all neg- bystander the tort of distress of a under ligent is not measured infliction of emotional distress family distress of the loss the acute emotional damages Rather arise from member. bystander's of the circumstances of observance injury, incident occurs serious either when the death or after. soon public summary, basis of In to determine preclude liability policy considerations whether bystander a must distress to a court severe emotional severity injury the to the three factors: the consider relationship victim, of the the victim, the surrounding extraordinary and the circumstances discovery injury. plaintiffs of the These factors relate they underlying principles tort; of the are rele- to the authenticity measuring of the claim and vant to resulting for emotional harm from a limits of negligence. rule on these fac- defendant's Courts must public policy case-by- tors on a considerations case basis. applied public policy con-

In this case we have siderations and conclude that Sharon has Bowen may granted; public upon claim stated a which relief be policy preclude liability do considerations this case. part forth,

For reasons set we reverse that appeals dismissing decision the court of Sharon Bowen's claim and remand the cause to the circuit court for further proceedings consistent with this opinion.

HHHH We turn now to the estate's claim for negligent infliction of emotional distress on Steven Bowen. The emotional distress claimed relates to the apprehension and fear Steven Bowen suffered before his death. This claim presents different fact situation from Sharon Bowen's claim but involves the same tort of negligent infliction of emotional distress. The court has not yet had occasion to deal directly with a claim for negligent infliction of emotional distress immediately preceding the victim's death.

The estate to no points evidence in the record sug that Steven gesting Bowen experienced any physical manifestation of the alleged pre-impact emotional dis tress. Accordingly, the court of appeals, Ver relying Gibbons, v. Hagen Wis. 2d 227, 177 N.W.2d 83 (1970), denied the estate's claim on the grounds the tort of negligent infliction of emotional distress requires the emotional distress be manifested by injury32 and that no claim of physical can be made in this case. We have concluded in this case that no physical manifestation of severe emotional distress is needed. 32See, e.g., City Berlin, Garrett v. New Wis. 2d 234-37, Rennick (1985); 362 N.W.2d 137 Corp., v. Fruehauf 793, 804-05, Wis. 2d Redepenning (1978); N.W.2d 264

Dore, 129, 143, 56 Vinicky (1972); Wis. 2d 201 v. N.W.2d 580 Co., Casualty Midland Ins. 35 253, 151 Wis. 2d N.W.2d 77 the elements of the estate has set forth While distress, of emotional for claim public policy apply considerations we when claim that the estate's above, we conclude described speculation to It is mere assert be dismissed.33 should impending impact or knew of the that Steven Bowen in the emotional distress moments suffered severe recovery impact. of under circum- before Allowance likely open way be too of this case would stances claims. to fraudulent part forth affirm that of

For the reasons set we dismissing appeals the estate's of the court of decision claim. summary, part of

In we reverse that of the decision dismissing appeals of the claim Sharon the court part of decision of the court and affirm that Bowen dismissing appeals claim of the estate Steven for cause to the circuit court Bowen; we remand the proceedings opinion. this not inconsistent with appeals

By of the court the Court —The decision part, part, affirmed in and remanded to in reversed the circuit court. (concurring). majority WILCOX, P. J.

JON bystander's opinion prudently limits a cause of action Inc., (D. 33 Fogarty Campbell Express, v. Supp. 640 F. 1986) (no recovery instantly for driver killed at intersec Kan. Ill., Chicago, In re Near Disaster collision); tion 507 F. Aircraft 1980) (N.D. (no Supp. recovery fright for for Ill. decedent Pennsylvania Nye crash); airplane anticipation terror Trans., Dep Super. 331 Pa. 480 A.2d 318 t. (1984) (no recovery pre-impact fright from fatal head-on collision).

for infliction of emotional those bystander instances where the witnesses comes immediately upon the scene of a close relative's serious injury. public policy or fatal Because these limitations effectively help authenticity bystander to ensure the claims for infliction of emotional distress, I today's concur with result. I concerned, am however, aspects majority opinion, that other of the when applied to situations where these constraints do not liability, exist, will lead to claims, fraudulent excessive unnecessary litigation. and long recognized

Courts have the need to assure the validity of claims for emotional time, distress. Over and jurisdictions, across this need has revealed itself in prophylactic requirement rules, various such as the plaintiffs "physical impact," that bystanders suffer or that danger,"

be in the "zone of or that there is some perfect manifestation of emotional In distress. necessary.

world, such rules would be Today, public policy I instance, believe the limita- majority places bystander recovery tions the are more rational and evenhanded than Waube's zone of danger rule. majority's unsupported

Still, I do not share the view that medical science has now advanced to the point easily distinguish genuine we can claims for feigned.1 from emotional distress As a result, I majority unwisely unnecessarily think point "regardless declares that from on, this of the fact situation," claims for the infliction of emo- only satisfy tional distress need the standard elements concedes, majority As the require most states continue bystanders claiming negligent infliction of emotional distress to danger either have been in the zone and/or exhibit some physical manifestation of their emotional distress. duty, injury, negligence, cause-in- i.e., breach that in survive a motion to dismiss. Given

fact, to order every summary judgment, reasonable for on motions nonmoving party's must be accorded inference pleadings, TV, see, American 146 Wis. 2d State v. (1988), majority's approach N.W.2d 709 every virtually inflic- claim for assures that go jury. to the of emotional distress will tion Perhaps to if such an outcome entailed no cost forced to defend themselves those will now be who highly speculative against claims, and were it also already overburdened, this court dockets are true that justified leaving might all for emo- be claims court process. I, however, to tional the adversarial long-recog- costs, think such combined with makes it cases, of fraud in these incumbent nized risk upon impose type to to continue some this court public policy on this cause of action. constraints simply require to a

I that in order survive would summary judgment, plaintiffs the bur- motion for have producing to extrinsic, some verifiable evidence den support require physical

their claims. I would not person. consistently impact Wisconsin, has rejected requirement. Nor there must be of emotional distress. manifestation Nevertheless.! plaintiffs need more than their own uncorroborated injury claims of emotional survive a motion to dismiss. example my

An illustrates concerns. Take the case person crossing street, of a claims that while who they nearly by passing struck motorist, were and that fright by this occasioned near miss has caused great majority them If, emotional distress. as the negligence apply instructs, the standard elements of certainly claim, this will almost survive motion for I summary judgment. do not think this is appropriate. potential fraud is too simply great. Life in our is full society of near misses, as anyone who has run the gauntlet of rush-hour traffic can attest. These can experiences be extremely distressing. Nevertheless, people should not be able to convert such occurrences into a source of monetary recovery. Nor do I believe that Wisconsin has ever allowed recovery these cases when the complained-of emotional distress was not accompanied some extrinsically-ascertaina- ble proof of the offending event.2 concern is that

My the trial courts this state will take from today's case the view that claims for negli- infliction of gent emotional distress are to be handled precisely like other any type negligence claim. I do not think that should be the case. say This is not to requires proof that Wisconsin

impact plaintiffs on the body. previous But in reported all the area, cases in plaintiffs alleged this injury resulted from an event which susceptible was to extrinsic verification. For instance, Warrington, Waube v. 216 Wis. 258 N.W. 497 (1935) the defendant's car struck plaintiffs and killed the daughter. Mandella, In Colla v. 594, 595, 1 Wis. 2d 85 N.W.2d (1957), plaintiff suffered emotional distress when the defendant's Pankopf v. truck struck her house. In Hinkley, 141 146, 147-48, 123 (1909), Wis. N.W. 120 riding was people with several other when the they coach in which were passengers was forced off the road the defendant's driving. Gibbons, Hagen In Ver 220, 177 47 Wis. 2d N.W.2d 83 (1970), plaintiffs caught house on fire due to the defendant's fireplace. construction of a In City Garrett v. Newof Berlin, 223, 226, 362 122 Wis. 2d (1985), N.W.2d police car plaintiffs brother, ran over the causing him perma severe and injuries. nent B. state that Justices Roland I am authorized to

Day concurring join W. in this and Donald Steinmetz opinion.

Case Details

Case Name: Bowen v. Lumbermens Mutual Casualty Co.

Court Name: Wisconsin Supreme Court

Date Published: May 25, 1994

Citation: 517 N.W.2d 432

Docket Number: 92-1728

Court Abbreviation: Wis.