*1 jurisdiction enforce its traffic ordinance does have against of the Lac du Band an enrolled member Flambeau on the Band’s reservation. Shirley joins in
Justice S. Abrahamson this dissent. Litem, Garrett, minor, her ad Guardian Stephen Helders, E. Kravit Paul
Plaintiffs-Appellants, Raymond Helders, Plaintiffs, and Cecilia M. Garrett City Sentry Insurance, a mutual com Berlin, of New
pany, Barnes, Patricia A. The 15 Outdoor d/b/a Maryland Casualty Company, Theater and Defend ants-Respondents, Employers Subrogee. Company,
Wisconsin Insurance
Supreme Court Argued February 6, No. October 1985. 84-157. 1984. Decided
(Also reported 137.) in 362 N.W.2d *3 by plaintiffs-appellants For there were briefs Stephen Apfeld Godfrey Kravit, E. B. & Michael and argument Kahn, Milwaukee, by S.C., and Mr. Kravit. oral plaintiff, plaintiff-appellant, Helders, For and Paul Murray, Helders, T. was a brief Cecilia there James Jr., Randy Murray, Peterson, Parlee & S. and Johnson S.C., Milwaukee. City Berlin and defendants-respondents, of New
For by Joseph Sentry Company, a brief Insurance there was Frauen, Powell, Borgelt, Peterson & McDevitt and D. S.C., Milwaukee. and Barnes A. defendants-respondents, Patricia
For by Brian Company, was a brief there Maryland Casualty Riordan, Crivello, Hogan and Henderson, J. Michael J. Milwaukee, oral Henderson, and Carlson, & Mentkowski argument by Henderson. Brian J. a appeal from CALLOW, This is an J. G. WILLIAM grant- county Waukesha court for
judgment the circuit of plaintiff Connie judgment dismissed ing summary which dis- negligent infliction of claim Garrett’s plaintiff Felders’ dismissed Paul and which also tress society companionship and services, of claim loss Raymond paid expenses on of Garrett. medical behalf joint appealed, and Paul Helders Connie Garrett a bypass pursuant to petition appeals, court of sec. Stats., (Rule) was filed. We 809.60, 808.05 and sec. joint judg- granted petition bypass. affirm the We part, part, ment of the circuit court in reverse proceedings. remand the cause for further presented appeal The on issues whether a danger may not within the field of recover for resulting witnessing infliction of emotional distress from sibling being injured per- a an accident and a whether adoptive son who is not parent, a natural or but rather parentis child, may stands in loco to a recover for loss society services, companionship, and medical ex- injuries penses as a result sustained the child. September 5, 1981, On p.m., between 10:30 and 11 Raymond Garrett, years age, thirteen and his sister Garrett, years age, along fourteen with a young people, edge number of other were on the of The premises 15 Outdoor Wisconsin, Theater in New Berlin, watching against movie. leaning Connie was a fence edge Raymond premises. the theater was about lying away, feet gravel aon driveway. blanket near a
At about 10:45 p.m., squad city car driven police New Berlin officer premises entered the theater through the headlights exit with extinguished. its *4 swept officer the fence spotlight area with his and ac- celerated the pursuit car of the children he had ob- driving officer, served. The lights, without ran over Raymond, causing him permanent severe and injuries. squad
Connie saw the Raymond. car run over The car was never closer to her than or 20 feet. She ran over Raymond to where lying, was saw his bloody twisted and legs, and emotionally became distressed. Connie sus- injuries result col- physical as a of the no direct tained safety. own never feared her lision and along Raymond Connie, April 7, 1982, with On Helders, stepfather, and Paul Cecilia their mother and county against brought circuit court Waukesha suit Berlin, the owner of the city Barnes, New Patricia respective An theater, insurers. amended sum- and their August complaint were on 1982. filed mons and sought complaint, recovery for severe In the emotional shock and distress a result of wit- suffered as nessing injury deposition, In her to her brother. testimony concerning post-acci- her Connie’s immediate hysteria. addition, dent behavior evidenced a state of In psychological she claimed later she suffered other problems including insomnia, disruption of her relationship family, lowering grades with her of her school, self-image. and deterioration of her Raymond’s Helders, sought stepfather, recovery
Paul Raymond’s services, society for loss of loss com- panionship, past expenses. and future medical Hel- adopted Raymond ders had not provide or Connie but did support them, financial supplementing the $200 monthly support paid the children’s natural father. Raymond saw year his natural father once a or less. Raymond years Helders had known since he two age stepfather and had years. been his for about ten Raymond through Helders carried medical insurance on place employment. his sepa- Cecilia and Paul Helders February rated in of 1983, and Helders continued to Raymond. maintain visitation with May all summary defendants moved for judgment on Connie Garrett’s and Paul Helders’ claims. granted The trial court summary judgment on both respect claims. With to Connie claim, Garrett’s the court that, found since danger she was not within the field of at the time accident, of the she could recover for *5 228 witnessing a
emotional distress suffered as result of that accident. The court also stated the record demon- physical injury that had sustained no strated ac- companying injury. her claim for re- With spect claim, Paul step- to Helders’ court found a that expenses father was not entitled to recover for medical society or loss of companionship services of a stepchild. grant reviewing summary judg trial court’s apply
ment,
forth
this court must
standards
set
Stats.,1
(2),
sec.
manner
802.08
the same
as the trial
Employers
court. Kremers-Urban Co. v. American
In
Co.,
722, 733,
surance
119 Wis. 2d
351
156
N.W.2d
summary
(1984).
judgment
moving party
On
genuine
the burden to establish the absence of a
issue as
any
judgment
summary
material
fact.
on
The court
does not decide the issue of material
fact
decides
but
genuine
dispute. Poyn
whether there
is
fact in
issue
Johnston,
ter
439,
v.
446,
114 Wis. 2d
The first person issue before the court is whether a danger may who is within the field recover judgment sought pleadings, “The if shall rendered depositions, file, interrogatories, answers and admissions on together any, affidavits, with the if show there no genuine any moving party issue as to material fact and that judgment to a entitled as a matter of law.” *6 resulting negligent infliction emotional distress from witnessing sibling being injured a in an accident. Courts historically plaintiffs have allowed a to maintain cause only limiting of action for emotional distress if certain qualifying present. Comment, Negli- and factors were gently Mental Distress: The Case an Inde- Inflicted for pendent Tort, 1237, (1971). Early 59 Geo. L.J. 1238 plaintiffs recovery cases denied plaintiff unless had contemporaneous a physical injury suffered impact or by accompanied mental distress. Id. at 1239. The ma- jority gradually departed of courts impact from rule permitted and a cause of action for the inflic- tion of emotional distress if the claimant could establish that Note, he she met certain Negli- other criteria. gent Emotional Keeping Distress: Dillon in Infliction of Bounds, 37 1235, Wash. & Lee (1980). L. Rev. 1237 parties
The this a choice have framed issue as be- by adopted tween the rule law court in this Waube v. Warrington, (1935), and a N.W. foreseeability by adopted test which been some other governing courts. In Waube we set forth a rule a claim compensatory damages alleged negligent for for inflic- by tion of emotional distress a witness to an accident. looking The a Waube mother who was watching out her the window of house her child cross highway when she saw an automobile strike kill witnessing accident, Mrs. the child. As result “ extremely hysterical, sick, pros- Waube ‘became through fright, shock, emo- trated and excessive sudden ” disturbances,’ weeks tional id. at and died two brought later. Her for her action to recover husband action. death. court refused to allow such cause of reaching explained Justice Wickhem the reasons this result as follows: thing say “. . It . is one to those who that as
put
peril
physical impact, impact
is immaterial
if
arising
physical
injury
shock
is caused
from the
peril.
quite
thing
...
say
It
another
those
physical danger through
who are out of the field of
pact
im-
legally
right
protected
shall have
to be free from
peril
others,
occasioned
distress
when
physical
impairment.
distress results
. . . The
by balancing
answer must be reached
the social interests
involved in order
duty
to ascertain how far defendant’s
plaintiff’s right may justly
expediently
be ex-
tended.
they
It is our
justly
conclusion that
can neither
expediently
nor
injuries
any recovery
be extended to
range
sustained
one out of
ordinary
physical peril
aas
result of
witnessing
the shock of
an-
*7
danger.
consequences
other’s
extraordinary,
Such
are so unusual and
event,
viewed after the
a user
the
highway may
subject
be said not to
others to an unrea-
management
risk
sonable
of them
the careless
of his
Furthermore,
liability imposed by
vehicle.
the
a
such
wholly
doctrine
proportion
culpability
out of
to the
tort-feasor,
the
put
would
an unreasonable
upon
burden
highway,
users of
open
way
the
the
to
claims,
fraudulent
and enter a field that has no sensible
just stopping point.”
Id. at 612-13.
expanded upon
danger requirement
We
the field
Light
176,
Klassa v.
Co.,
Milwaukee
Gas
273 Wis.
(1956).
employees
N.W.2d 397
In Klassa defendant’s
negligently
explosion
caused a minor
in the basement of
plaintiff’s
installing
gas
regu
home while
pressure
lator. Plaintiff’s children were in the
basement
the
time
plaintiff sought
but were
recovery
unhurt. The
fright
the
experienced
shock and
appre
she
due to her
safety.
hension for her
that,
sons’
In Klassa we held
order to recover
distress,
person
for emotional
must not
only
range
ordinary
be within
physical
the
peril but
actually
must
be in
safety.
fear for his or her own
“[Ejven though
sustaining
danger,
person
the
the
were
shock
potential
within the field of
if
shock was
solely
stated
safety,
the result of fear
the . . .
for another’s
policy
opinion
reasons in the Waube
for hold-
Case
ing nonliability
applicable.
would be
. . .
consider
[W]e
policy
deny recovery
it to
be
better
in all cases
physical injuries
solely
where the
fright
there
caused
shock or
resulting
safety
from fear for another’s
where
physical
impact
no
person
to the
for whose
injuries recovery
damages
sought.”
(em-
Id. at 187
phasis
original).
requirement
addition
be
danger
within the field of
and fear for
her
his or
own
safety, this court
also
established an additional cri-
recovery
terion which must be met before
for emotional
plaintiff’s
distress will be allowed: The
dis-
injury.
Hagen
tress
must manifested
Ver
Gibbons,
220,
v.
(1970).
47 Wis. 2d
Connie Garrett
us to abandon
foreseeability
replace
danger
test.
rule and to
it with
leading
Legg,
adopting
Dillon
case
such a test was
(1968).
In Dillon
68 Cal. 2d
The Dillon position liability court the the infliction of emotional distress would de- injuries were foreseeable the upon such pend whether also, at the accident. Id. 741. See at the time of defendant Distress: Reaction Note, Negligent Mental of Infliction States, Legg 25 Hast. Other to Dillon v. California (1974). The Dillon court addressed L.J. 1252-53 potential for problem unlimited under of the by establishing foreseeability three factors which test general liability. determinants of act as Those were to were: factors the scene of “(1) plaintiff was located near Whether a distance with who was the accident as contrasted one away (2) resulted from from the shock it. Whether sensory upon plaintiff impact from the direct accident, contemporaneous as con- observance of learning after from others
trasted with
the accident
(3)
victim
plaintiff and the
its occurrence.
were
Whether
any
closely related,
with an
as contrasted
absence
only
relationship
presence
a distant
relation-
ship.”
We thus must determine
under
negligence
ciples
law,
Garrett
is entitled to
negligently
maintain
action to
for her
in
recover
previously
flicted emotional
This
distress.
court
“negligence
stated that
is to be determined
ascertain
ing
foreseeably
whether the defendant’s exercise of care
created an unreasonable risk to others. That
test
is to
applied
negligence phase
at the
analysis
of the
to the
large
particular plaintiff.”
world at
and not to the
An
Reszczynski,
v.
836, 857,
toniewicz
70 Wis. 2d
236 N.W.2d
(1975). “Liability
necessarily
does not
follow even
negligence
negligence
when
as a cause-in-fact of
injury
persent.
policy
may
Public
pre
considerations
liability.” Morgan
Pennsylvania
clude
General Insur
Co.,
ance
2d
(1979).
Some imposing reasons for not liability despite finding negligence (1) are: in- jury negligence; is too remote (2) injury from the wholly proportion too culpability out of to the of the *10 234 tort-feasor; appears (3) retrospect it too
negligent negligence have extraordinary should highly that the harm; recovery biought (4) would allowance of the about negligent tort- on the place unreasonable burden too recovery likely feasor; to (5) allowance of would be too claims; (6) way open for fraudulent allowance the just recovery a field that no sensible or would enter point. Morgan, Applying poli- id. at stopping 737. these prohibit case, they conclude do not Con- to this we cies distress. maintaining for emotional from action nie by Ray- injuries suffered the traumatic Connie observed feet. was close 20 She from a of 15 or mond distance Raymond to enough squad run over to see the car resulting injuries pain. Connie severe witness his Raymond’s not believe that older sister. do We allowing for her emotional distress to recover Connie way likely open claims or be to for fraudulent would We, stopping point. would enter a field with no sensible therefore, presented in this hold that under the facts may maintain an action recover case Garrett to for the she a result of emotional distress suffered as seeing injured. her brother plaintiffs requirement that seek- next examine
We dis- ing of emotional infliction to recover physical they mani- that have suffered tress must show Connie Garrett of their emotional distress. festation requirement argues physical manifestation arbitrary alternatively, unnecessary and, erroneously that she had suffered trial court concluded physical injury. no re- allow to reluctance policy behind this court’s of accom- absence
covery in the for emotional distress explained in resulting physical injury was panying or 115, N.W.2d Mosher, 2d 325 109 La Fleur Wis. flooding with the courts (1982), “the fear of as potentially exposing defendants fraudulent claims every type unlimited of mental disturbance. unwillingness It further reflects step of the law to applicable.” where social controls are more limited Under circumstances this court has carved out exceptions requirement that the emotional distress injury. In Alsteen v. Gehl, manifested (1963), that, 2d N.W.2d 312 we held where plaintiff’s intentional defendant’s conduct results distress, need not show an at- *11 injury. physical tendant Hagen Gibbons, In Ver v. specifically Wis. 2d at we the stated that Alsteen involving decision was limited to cases intentional con- negligence duct and in physical that the mani- actions requirement festation remained. Mosher, eliminated recently, in La Fleur we
More injury requirement physical in where the the of cases negligent confinement. results from emotional distress girl negligently fourteen-year-old In La Fleur a con- was department police in a cell with- fined for thirteen hours food, water, Although out or blankets. the suf- injuries physical confinement, fered no result of her as we held that she maintain was nevertheless entitled holding action for La emotional distress. Our in Fleur very stated, was appropriate narrow. “in We the cir- negligent confinement, though cumstances the tort of negligent conduct, by very based on nature the its causing special real emotional and severe likelihood genu- guarantee probably claim distress. The that 2d at ine nature tort 109 Wis. is in the of the itself.” generally omitted). (footnote af- stated that we We grounds Hagen public policy firmed Ver on continued require physical proof of emotional manifestations negligence at 118. 2d distress actions. 109 Wis. negli- requirement decline to We abolish the gence actions emotional must be manifested distress physical physical injury. Fleur, As we noted in La necessary injury requirement in order to avoid flood- ing the courts with fraudulent or trivial claims. When injuries, physical manifested distress is probable genuine. it is more claimed distress is Id. judgment summary motion for
In its on the decision dismissing claim, the trial court stated Connie Garrett’s that the record demonstrated that Connie had sustained accompanying physical injury conjunction with no witnessing as The trial a result accident. court also noted that Connie had not been within field of danger. rule, Under the and Klassa Waube Connie’s position danger outside the field of was a sufficient ground to defeat her claim and warrant the trial court’s grant summary judgment against her. Once the trial danger, court found that she was the field of outside her failed, presence claim or absence of of her emotional manifestations distress immaterial. post-accident deposition, testified to In her hysteria at which evidenced a state of behavior in- she suffered scene of the accident. She also claimed disruption experienced a somnia two months *12 relationship family, drop in her her a her school with self-image. grades, and a of her it is deterioration While family relationship disruption that a of or doubtful one’s manifesta- grades physical drop could constitute recognized as such hysteria distress, emotional tion of Dictionary Medical Stedman’s physical manifestation. “hysteria” as: Lawyers’ 1966) (2d Ed. defines 782 characterized psychoneurosis, neurosis, or “A chronic symptoms. It is physical anxiety of into conversion character, from varied symptoms of the most marked emotional ex- instability and attacks simple nervous crying laughing, to convul- citement, or with causeless trophic, vasomotor, contractures, sions, muscular psychic disorders.” Attorneys’ Dictionary Schmidt,
2 J. Medicine and Finder, (1984), “hysteria” H-142 defines Word as fol- lows: type condition, psychoneu- technically a “A of mental exaggerated rosis, in which emotions become trans- manifestations, physical formed into tions or as overactive mo- perverted (distorted) impressions. The sense feelings patient loses control over acts. his his He anxious, self-conscious, fearful, often tearful. He is un- evaluate, exaggerates, signifi- able to and therefore sensory impressions, cold, pain, cance of as of etc. patient may feeling pain “The lose the in certain body, or, hand, develop areas of sive on the other exces- sensitivity. may complain pain He tenderness many parts especially body, in the back and head, choking vision, sensations, of dimness of etc. symptoms convulsions, spasms, paralyses Other muscles, flushing, fever, various hallucinations, withhold-
ing urine, etc.” addition, while may insomnia alone abe suffi cient distress, manifestation of emotional in coupled somnia with physical symptom may some other be sufficient. See Hawes v. Germantown Mutual Insur Co., ance 524, 532, 2dWis. (Ct. 309 N.W.2d 356 App. 1981).
Summary judgment genuine appropriate is not if a any issue exists as to material fact. weAs stated in Wright Hasley, 572, 580, 86 Wis. 2d N.W.2d (1979), competing remained inferences to “[t]here testimony. plaintiff’s drawn from the It cannot be said her questions answers to these selected on ad- any ques- verse examination material issue of fact on the disabling tion of an response extreme disappeared from the case.” We conclude the record before the trial court was sufficient to show the existence genuine of a respect issue of material fact with to the *13 238
physical manifestation of Connie’s emotional distress. light finding general In principles of our that under of negligence may maintain an action for her emo- was, distress, it therefore, tional error for the trial court grant summary judgment dismissing claim, to Connie’s portion and we reverse that of the trial order and court’s remand the matter to the trial court pro- for further ceedings. may final issue we decide is whether Paul Helders
The services, society for maintain an action the loss of and expenses companionship, Ray- stepson, medical and his Shockley v. Prier, mond Garrett. 66 Wis. 2d recognized right parent (1975), a we N.W.2d against for tortfeasor to maintain an action a aid, society companionship comfort, loss rights injured stepparent a to an minor child. Shockley. bring were not discussed in such action parentis to loco argues that one who stands Helders bring to recover an action to a should be entitled child companion- society services, of the child’s loss to expenses decline so ship, incurred. and medical We Shockley. natural or Unlike forth in extend rule set parentis being loco adoptive parenthood, status sec. Child Parent temporary. 67A C.J.S. duty to father has Raymond natural (1978). Garrett’s sup- provide fact, has continued and, support him may stepparent A Raymond port and Connie. for both stepchild’s services loss of an action for maintain correctly court society companionship. The trial summary granted judgment claim.2 on Helders’ that, Although stepparent, lacks Helders as a we hold parents Shockley maintain standing to natural which afforded companionship, services, society and for loss of a child’s an action expenses out-of-pocket standing compensation in to seek his Raymond is not of the accident as result on behalf of curred
By the Court.*—The order the trial court is af- part in part, in reversed firmed the cause is proceedings remanded for further with not inconsistent opinion. this
HEFFERNAN,
(concurring).
CHIEF
JUSTICE
agree
majority opinion,
I
While
with
result of the
I
agree
distinguish
cannot
with its efforts to
this case
Warrington,
v.
from Waube
216 Wis.
The “zone of in no modern negligence absolutely that, Wisconsin law. It is clear in here, a situation such as that at issue where there is negligence, (substantial in proxi- cause fact factor), cause, injury, liability. mate there is of dan- “Zone ger,” part analysis, because, as falls out where act, liability there is respect there is in to anyone injured by negligence. who is in fact liability cut-off for is to be examined in an artificial saying way, as such that there can no liability be for one danger,” out of the because, “zone of in the event a plaintiff injured any way, in fact is. danger.” within the “zone of proximate analysis
Under the cause Osborne Montgomery, (1931), 203 Wis. how- N.W. ever, the fact one either within without “zone danger” liability does not dictate if there is cause in proximate fact and cause. cause, however, policy ques-
Proximate subsumes the tion, court, liability decided of whether fol- negligence, (substantial factor), lows from cause fact injury. dependent upon stepparent. his as status The record before us any does not contain information as to whether has in- Helders expenses. curred such case, we
In the instant should discard outworn danger” analysis and anomalous “zone and instead apply policy proximate factors included cause injured young whether the sister of the man determine may predicates recover if the other satisfied. *15 case: there as mine run Was
This should be treated injury, it negligence? fact and is Did it in cause the particular impose in view of the reasonable to require a ? “zone of dan- of the case This does facts overruling specific ger” analysis. require the It does of Waube. dissenting the position taken in adopt the also
I would
Gibbons, 47
Hagen v.
opinion
in Ver
Wilkie
of Justice
dissent, joined
(1970). That
220,
83
2d
177 N.W.2d
con-
of
the author
this
Hallows and
by Chief
Justice
resulting
urged
from
distress
currence,
that emotional
“regardless
compensible
of
should be
conduct
subsequently physi-
was
emotional distress
whether this
Hagen dissent,
cally
at 228. Whether
manifested.” Ver
injury
compensible
or
distress
is
fact emotional
there
evidentiary principles.
proof
a matter of
under normal
is
illusory problem
all
of Waube.
It
not at
related
is
specifically
I would
overrule Waube.1
By
only
abolishing
person
the notion that
within
danger” ought
compensated
for emotional
“zone
be
only
“physical
then
if
manifesta-
distress and
there
rationality
consistency
distress,
tions”
some
negligence
phase
to this
law.
can inure
our
1
holding
application
ma
The
of Waube is based on
jority
Palsgraf
Long
Co.,
N.Y.
v.
R. R.
248
rationale
Island
repudi
339,
Waube,
162
99.
That
N.E.
614.
rationale
been
City
e.g., Coffey
See,
v.
ated on numerous
court.
occasions
this
Milwaukee,
(1976);
526, 537-38,
74 Wis. 2d
I egois- would bizarre, also our tort law of the only tic notion that compensable if distress is safety. slip opinion occasioned fear for one’s own See at 231. that one can emotional distress doctrine suffer danger”
only when within the “zone of is based on emotionally only distressed as idea one can *16 safety. for Klassa v. Milwaukee result of fear one’s own (1956). Light Co., 176, Gas 77 397 273 Wis. N.W.2d Yet, opinions a number of our deal with the distress injury, hazard, caused as the result the or death of of plaintiff. someone other than the It clear from our is danger” that own cases the basic rationale of the “zone of safety largely plaintiff’s —fear the own irrele- —is alien the have arisen and to that to the claims vant beings. the Waube, normal human characteristics grief witnessing the death of after mother, who died of negligence defendant, was of the by killed the her child danger injury any there was never in an area where damage any to claim of emotional to her. There was no Yet, safety. for her own of her fear Waube because Mrs. damage to mother was not of emotional the the fact totally artifi- seriously challenged except on in Waube danger” i.e., “physically mani- grounds, “zone of and cial injury.” fested
242 beyond experience reason the realm of to
It is
cannot, as a matter of
that emotional distress
conclude
danger
physical impact
law,
there is
result unless
to
is a
or there
manifestation of the
the
Whether, liability
distress.
should ensue once
negligence and causation is
the chain of
established is
by
policy
application
court in each indi
decision
Morgan
Pennsylvania
Co.,
vidual case.
v.
Ins.
General
723, 737,
(1979) ; Coffey
87
2d
It time we with the automatic and irra- application liability tional limiting of the formulations majority attempts distinguish but the same fervently time embraces.
1 concur in the result.
upon
disagree
policy
I do not
with the nature
factors relied
majority.
applied
policy
However,
those
factors should be
i.e.,
court,
judge,
after
there is a determination
negligence,
fact,
injury.
then,
It
an
cause
as
—
proximate cause,
judge
appropriate
element of
case
*17
may apply
limiting
policy
to
the
as a
device
factors
prevent
unjust
See,
Chicago
an
result.
v.
Hass
& North Western
Ry. Co., supra
326,
594, 598-99,
Mandella,
2d
and Colla
1 Wis.
(1957).
243 Shirley A. S. Abrahamson and William Justices join concurrence. in this Bablitoh CECI, (dissenting). respectfully I dis- J. J. LOUIS reasoning employed from the and result reached sent danger” majority in its deterioration of the “zone the negligent requirement infliction of emotional distress Warrington, cases as established Waube v. (1935), 258 N.W. and modified Klassa v. Light Co.,
Milwaukee Gas 273 Wis. N.W.2d danger” (1956). uphold require- I would the “zone of today’s prior it to ment as stood decision. disagree majority’s
First, I with the conclusion inapposite The ma- facts in this case. Waube is to the inapplicable jority that Waube is because Con- concludes object police an of the activi- nie Garrett “was officer’s group children ties since she was a member of implies pursuing.” At This statement he was 232. of the accident with her fled from the scene that Connie police pursued that she officer. friends and implication police officer shined That is incorrect. stand- were children where several spotlight in the area friend, while ing. still with one remained only pursued children those then fled. The officer others majority con- running. Contrary to what were who cludes, a mere observer that Connie was I believe accident. in Waube test established
Additionally, accident of the an observer plaintiff was whether the but, activities, object defendant’s of the physical peril of inwas rather, whether Waube, explained in impact. We put in are thing say those who that as to one “It is physi- if impact, impact is immaterial peril arising peril. from injury shock caused cal say who thing those quite another It is ... *18 danger through physical impact out have field of of the shall right legally protected free from emotional by peril others, distress occasioned when that dis- physical impairment. tress in ... results our It con- is justly clusion can that neither nor [social interests] expediently any recovery physical be extended to injuries range ordinary sustained one out of physical peril witnessing as a result of the shock of danger.” another’s Id. 612-13. case, undisputed In this it that was Connie Garrett squad twenty never than fifteen to feet closer from the danger that ran car over her brother and was never in being injured path herself. Connie was never in squad prior of the car to or after the accident. I conclude controlling liability Waube is limit in would this case Garrett, because Connie like the deceased mother in Waube, peril never impact and, in there- fore, danger.” outside the “zone of essence, ma- jority rejecting by allowing Waube this of action cause plaintiff range stand when the was never within the physical peril. recovery
Second, should be limited in case because this undisputed it is that Connie Garrett never feared for her safety. majority Klassa, own At 227. The cites acknowledges 176, and order to recover for distress, only must not be within the danger, actually field of but also must be in fear for his safety. However, majority her own At 230. apply then fails to Klassa to the facts of this case despite allows Connie’s cause of action to stand the fact safety. that she never feared for her own public Finally, majority of the some discusses despite policy preclude used courts to reasons negligence. finding At The “zone of 234. danger” limiting liability inflic- rule founded on these tion of emotional distress cases was Waube, maintained, concerns. In we same balancing social “The answer must be reached far defend- interests involved order to ascertain how duty plaintiff’s right may justly expedi- ant’s ently neither ery they It be extended. is our conclusion that can *19 justly expediently any nor be extended recov- injuries sustained one out of the range ordinary physical peril aas result of the shock witnessing danger. of so that others to an consequences another’s Such extraordinary, event, unusual and viewed after the highway may user of subject be said not to unreasonable risk of them the careless management Furthermore, of his vehicle. imposed wholly such a proportion doctrine is out of culpability to an tort-feasor, of the put would upon unreasonable burden highway, users of the open way claims, to fraudulent and enter a field that just stopping no point.” sensible Id., at 216 Wis. 613. I public policy believe behind these considerations danger” today. the “zone of rule remain valid majority bases its decision to allow Connie’s cause following of action to stand on the facts: by Ray- injuries “Connie observed the traumatic suffered mond from a distance of 15 or 20 feet. was close She enough Raymond squad to see the car run over and to resulting injuries pain. witness his severe Raymond’s was older sister.” P. 234. decedent, Waube, was Similarly, Waube, the in Susie hit looking an automobile out a window and observed “immediately daughter of the home of in front said her Id., . . .” presence . her Susie Waube enough to witness Waube also close 604. Susie daughter. resulting death her the accident undistinguishable from Because the facts in this case are policy Waube, public I believe that the considera- those espoused applicable preclude lia- tions Waube are bility any as a cause of emotional distress suffered alleged negligence. conclusion, I would defendant’s summary judgment granted affirm the by the trial court in this case because Connie Garrett was never within the danger, field of required by as Waube, and never safety, feared for required by her own as is Klassa. Con- trary majority contends, what the I believe that requirements court’s deterioration of these open will way for fraudulent claims and will enter a field with no stopping point. sensible Wisconsin, Plaintiff-Respondent,
State Lawrence Defendant-Appellant-Petitioner. Repp,
Supreme Court *20 Argued No. 83-531-CR. October 1984. February 6, 1985. Decided (Also reported 415.) in 362 N.W.2d