*1 78-3-4(5) (district jurisdic purchase courts have nate the contract sale and § agency to review set forth in property action as of real at issue as informal an UAPA). language The consist proceeding. UAPA jurisdic with ent that found this court’s agency designate All rules that one or 2—2(3)(f) statute. tional Subsection 78 — categories adjudicative more proceed judicial gives Supreme code Court ings comply informal must the cri as with and jurisdiction over “final orders decrees 63-46b-4(1) teria outlined section and district court review informal 63-46b-5(1) Nothing section UAPA. agencies.” adjudicative proceedings of indicates that record the Division’s 78-2-2(3)(f) (Supp.1991) Utah Code Ann. § designating rules the proceeding at issue added). (emphasis comply as do not 63- informal with section provisions These make clear that this 4(1). fact, In ex the Division’s rules 46b — jurisdiction dispositive has court over all requirements plicitly refer in section arising adjudicative orders formal categories and mandate that 63-46b-5 all proceedings, while the courts district have adjudicative proceedings of informal com jurisdiction over final actions re- agency Thus, ply with those criteria. absent sulting proceedings. Policy from informal challenge, we assume that the Division’s wisdom of considerations underscore the designating proceeding rules issue vesting jurisdiction Supreme with the juris as informal are valid. Consequently, only proceedings. Court for formal It is diction of this matter lies the district more efficient far for this court consider pursuant 78-3-4(5) to sections and complete actions which there is a record 63-46b-15(1), and we dismiss case for this proceedings, to review. Formal which al- jurisdiction. lack of the opportunity discovery low for fuller finding, likely fact are and more to result HALL, C.J., HOWE, C.J., and Associate adequate in an record for Conse- review. ZIMMERMAN, JJ., and STEWART quently, we hold 78-2- concur. 2(3)(e)(iii) jurisdiction confers in the Su- only preme Court over orders and final originate adjudica-
decrees that in formal proceedings.
tive
Thus, this jurisdiction court’s over depends instant case on whether the HANSEN, Hansen, Monte Linda C. Monte proceeding below was a formal an infor Hansen, Humphries, T. Duane Jess Car adjudicative proceeding. mal Section 63- Ravarino, Ravarino, ol and Richard 46b-4(1) permits of UAPA agencies des Plaintiffs, ignate categories adjudicative certain informal, proceedings provided they comply with the criteria contained therein. BOATS, INC., RAY an cor SEA Arizona (1989). 63-46b-4(1) Code Ann. Utah The § poration, Marine, Ari Southwest Forestry Division of State Lands corporation, zona Mari Professional designations. such
made ner, corporation, New a California Products, Inc., cor mark a California promulgated by The rules the Division of poration, Defendants. Forestry Lands and that all State indicate agency adjudications requests and all No. 900512. adjudications actually commenced Supreme Court of Utah. agency initially designated as informal adjudications. See Utah Admin.R. 632-8-1 March (1990). -2 provide, rules further “Agency adjudications re- include actions
lating to ... sales Id. R. 632- contracts.”
8-2(2). Thus, desig- rules Division’s
incorrectly reasonably believes that he actually bodily or she threatened with harm a claim for infliction of that satisfies the “threat distress *3 requirement of harm” of 313 of the (Second) (1965), of as Torts adopted by v. Rog this court Johnson 1 ers; (2) person whether who witnesses receiving bodily others harm and fears for person safety, although his or her own comprehend of the does source fear harm therefore does not harm source, particular from that has a claim for negligent infliction of emotional distress own that satisfies “fear one’s safe ty” requirement of section 313 of Re (1965), as statement Torts Rogers; this court in Johnson no, question if the to first answer yes person would the answer be described therein witnesses threat bod ily family harm an immediate member. pertinent facts are extracted from the order of certification. This action was Hansen, plaintiffs filed Monte T. Duane Humphries, and Carol Ravarino for Jess Anthony Thurber, Ronald J. Schneid- M. personal have injuries they claim to sus- er, City, Bishop, Arthur Lee Salt Lake they tained when received an electrical Murray, plaintiffs. at shock the water behind their boat Dalton, Payne, Robert Donald L. E. W. Powell, Utah. Plaintiff Richard Ra- Lake City, Ray Savage, Salt Lake for Sea Scott varino, himself, though never in the water Boats. claims to have received an electrical shock Porter, Winegar, Todd S. Karra J. Salt fiberglass standing plat- while on the swim City, Lake for Southwest Marine. pur- form on of the boat for the the back pose assisting Humphries from the wa- Hale, Dunn, T. Tim Dalton Glen Salt K. ter into Plaintiff Linda Han- the boat. City, Lake for Professional Mariner. water, enter come into sen did not James, Stephen Morgan, Dennis R. G. any plaintiffs four contact with who City, Cooper, J. Salt Lake for New- Michael shock, received an claim have electrical mark Products. shock herself. or receive an electrical She HALL, three naméd above witnessed the Justice: Chief shock, electrical received the pursuant the court This case is before Hansen, plaintiffs, Monte T. one Appellate Rules the Utah son. Mrs. Hansen claims that at the her certification from United Procedure on son, her time she the harm to witnessed District Court for the District of States general “global” experienced a kind of she order, In its the district certi Utah. fear, although she herself was not fear three issues law be determined fied receiving drowning an electrical person court: whether a this bodily harm who shock. actually threatened with (Utah 1988). P.2d partial summary- velopment of
Defendants moved for the law this area and noted judgment, claiming that under our decision positions the several that courts in this Johnson, Mrs. Hansen failed to state country regard have taken with negligent infliction of emotional claim for for emotional distress. Justice Durham ex- she distress because was never negligent amined infliction of emotional drowning receiving an electrical distress claims in terms of by- victim and shock, fear the time that she nor did she recovery.6 Negligent stander infliction of drown or receive an electrical shock. would person occurs when a breaches a claims that the circumstances Mrs. Hansen duty of care that he or she owes to other bring her case her claim for persons. persons scope Those infliction of emotional distress within the or “zone” of the defendant’s parameters of section 313 of the Restate- accident, *4 classed as “victims” of wheth- ment, adopted in Johnson.2 injuries er or not incur themselves. In addition to the facts in the certifica- “Bystanders” persons are those outside the order, in have set forth their scope duty of the defendant’s of care who specific concerning incident. brief facts the may by witness or be affected the accident facts, however, appear designed to These has from In which resulted the breach.7 persuade this court that Mrs. Hansen was Johnson, majority adopted a of this court actually danger in of electrical shock at the danger” theory recovery the “zone of time she the distress of the oth- witnessed negligent for infliction of emotional dis- ers. The order of certification makes it theory, tress.8 This found in section 313 of Judge clear that Greene of the United Restatement,9 recovery only the allows for already States District Court has con- those who are “victims” of another’s in sidered whether Mrs. Hansen was dan- words, duty.10 only In other breach ger has determined that she not.3 placed peril those in actual as a result of a determination, light In of this factual we re- defendant’s breach allowed questions presented answer the of law covery negligent for infliction of emotional us. danger the distress. Those outside by created the defendant are not allowed Johnson,
In
this court delineated
recovery for the emotional distress caused
recovery
negligent
the basis of
for
inflic
witnessing
by
In
main
the
of others.11 We
tion of emotional distress.4
the
opinion,5
danger
de-
the Restatement’s zone of
Justice Durham discussed the
2. Id.
Section
of the Restatement
785.
9.
(1965) provides:
Torts
specifies
Question 1 of
order
the facts in
the
(1)
unintentionally causes emo-
If the actor
person
actually
opening:
its
"Whether
not
another,
subject
he
tional distress to
is
bodily
threatened with
harm....”
The other
liability
resulting
other for
illness or
to the
rely
questions in the order also
on the factual
bodily harm if the actor
proposition that Mrs. Hansen was not in actual
(a) should have realized that his conduct
danger at the time of the incident.
causing
an unreasonable risk of
involved
distress,
knowledge
by
than
of the
Johnson,
otherwise
8. Id. at 785. bodily any harm other com- with approach in as a reasonable Johnson way.” in- recovery for allowing promise between jured plaintiffs and the interests reading A subsections the two rules.12 public predictable courts and the that the subsections con section 313 shows requirement that a tain impos of section 313 Subsection danger the zone recover within emo liability a defendant who causes es by an accident emotional distress caused if the knows tional defendant distress injured physically not in the is conduct involved an unreason his or her Thus, not where the accident. distress “otherwise able risk of emotional actually zone of created in the by knowledge peril harm or than of the conduct, negligent defendant’s emotion interpreted by the person.” a third As arising witnessing anoth al distress case law comments to the section peril harm recoverable under er’s or following the Restatement’s zone of holding our under rules, recovery for this section allows Johnson. personally plaintiff who was expand ask us to Plaintiffs physical impact zone of and feared found the Restatement peril due to acts persons include who are *5 defendant, plaintiff though the was even actually danger within the zone of but who during the physically injured not struck or reasonably subjectively they believe plaintiff A who within occurrence.13 rule, danger. in The are danger for emo may of recover the zone interpreted by courts who fol- written and by personal caused fear for tional distress rule, danger rationally lim- the zone of low though safety the suffered even negligent inflic- scope the of claims for its physical result of defen no harm as a the provides a tion of emotional distress duty. dant’s breach of the courts and framework for workable of 313 is clear Subsection parties regulate to their conduct. future seeking recov- requirement its that those to may it that rule some- While is true the by wit- er for emotional distress caused produce seemingly arbitrary results times the nessing to others must be injury within standpoint plaintiffs, from from the by defendants, the danger zone of created defendant’s the the rule standpoint of duty.14 The comments to section breach and under- provides the most workable the zone potential liability. 313 articulate and define The further limit of standable application its danger concept and the basic danger complements persons d that rules reason- requirement *6 types might of inju events cause emotional duty plaintiff. of care to the owed ry potential plaintiffs to an near accident argued the Plaintiffs have that court Therefore, foreseeability scene. the of adopt should the standards forth in set injury only emotional as the limit on recov section 436 of the of ery injury speculative for that is at best (1965) determining availability Torts for the unjustified and creates risk for a defen of claim Mrs. Hansen’s for emotional dis- dant to when he or she has not cre bear provi- tress.17 Plaintiffs contend the that bodily injury plaintiff. ated a of to the risk applicable sions of section 436 are more to
Further, danger the zone of rule the factual situation of their case and comports principle with the basic tort that applied determine should therefore to person may a not recover for vicarious the their viability of claims. need not We injuries: propriety adopting consider the of may liability
“A
in
436 as
of
our
only sue
his own
a measure
because
him,
right
wrong personal
prompts
a
to
conclu-
for
and review of that section
the
(2)
negligent
Passenger Corp.,
v.
as
Dobelle National R.R.
628
If the actor’s conduct
is
Sears,
(quoting
F.Supp.
1525
creating
causing
at
Bowman
Roe
bodi-
an unreasonable risk of
Co.,
754,
Pa.Super.
245
A.2d
buck &
369
757
ly
by subject-
harm to
otherwise than
another
Keeton,
al.,
(1976);
Page
Prosser &
W.
et
Keeton
shock,
ing
fright,
similar and
him to
or other
54,
(5th
1984)).
Torts
at
ed.
§
the Law
365
disturbance,
of
the fact
immediate emotional
solely
the
that
results
from
inter-
such harm
states;
436
17. Section
fright
operation
emotional
nal
of
or other
(1)If
the
is
actor’s conduct
as
protect
actor from
does
the
disturbance
liability.
duty
designed
violating
protect
a
of care
to
fright
a
or
another from
other
dis-
(2)
applies
stated in Subsection
rule
recognize
which
turbance
the actor should
bodily
where the
harm to the other results
involving
harm,
bodily
an unreasonable risk of
fright
peril
at harm or
to a
from his shock
solely
fact
results
the
that the harm
occurring
family
immediate
in
member of his
fright
through
operation
the internal
presence.
his
protect
does not
other emotional disturbance
liability.
from
actor
to
on the
fortuitous
circumstances
not be entitled
but
plaintiffs
would
sion
time
A
present
therein.
at the
of the incident.
the rules set forth
recover under
way
knowing
the num-
defendant
no
(2) and
of section
Subsections
proximity
bystanders
any
to
ber and
dis-
rely,
ask us to
upon
which
given
negli-
accident caused
his or her
distress caused witness-
cuss emotional
Indeed,
Supreme
gence.
the California
person.
sec-
another
These
ing harm to
noted, “[Tjhere
judicial
Court has
are clear
suffer emo-
specify that those who
tions
days
on which a
can foresee forever
merely because
shock
tional distress
liability
determine
none on
and thus
but
may
peril
recover
witnessing another’s
a
foresight
provides
so-
which that
alone
they
if
injury
were within
their emotional
cially
judicially acceptable limit on re-
time
danger
zone
at the
covery
damages
injury.”20
for that
Fur-
incident,
they perceived
to the
ther, recovery under
is not based on
Dillon
person,
person
and if
third
actual-
third
plain-
any
duty
of defendant’s
to a
breach
ly
relative.
injured was their close
tiff,
on vicarious
based
distinguishable
sec-
These rules are
from
duty
another. Because
the breach
to
recovery for a
because
allow
recovery is too attenuated
this vicarious
fear
who does not suffer
principle
to allow for
person
merely fears
his or her
but who
recovery by
limitations on
reasonable
However, the sections
injury to a relative.
plaintiff, we decline to follow the Dillon
parallel
requirement that one
section 313’s
for the
allow
also
who witnesses harm another must
even
those
outside
zone of
order
be within the
plaintiff may
instances where the
witness
Therefore,
recover for emotional distress.
harm to others.
re-
section 436 allow
both section
covery only when the
Applying
principles
these
cer
danger.
the certified
zone of
Because
answer all three
questions,
tified
we must
questions
Question
requests
indicate that Mrs. Hansen
negative.
one
danger during
plain
the incident
liability
actual
that we determine the
question,
application
of section
tiff’s emotional distress when she was out
change
but, nevertheless,
the result
this case.
would not
side the
*7
safety.
reasonably
for
Fol
feared
her own
plaintiffs urge
applica
Finally,
Johnson,21
holding
lowing our
by the
of the rule
state
Hansen,
her
Linda K.
who feared for
own
Johnson,
In
Legg.18
in Dillon v.
California
safety
objectively
was not
within
principles
and effect
we outlined
by
created
defendants’
Dillon,
recovery
noting
allows
that Dillon
duty, may
recover for emo
breach of
not
an
bystanders who are at the scene of
for
fright.
caused
her
tional distress
injury to a
relat
and witness
close
accident
arguable
plaintiffs have
It is
that
ive.19
question
The answer to
two must
requirements
this case.
met the Dillon
negative
because
also be answered
many
adopted Dil
Although
states have
danger.
outside the zone of
lon’s,
recovery in
rules as
framework
experienced fear for her own
Although she
cases,
distress
we believe
source,
safety
was not
from some
that fear
of Dillon is artificial
the framework
objective danger
supported by
created
unworkable.
duty to
breach of
her.
defendants’
Therefore,
safety,
her fear for her own
on
Recovery under Dillon is
based
source,
place
did not
her
from whatever
duty of a defendant
foresee-
danger.
plaintiff,
harm caused to
within
ability
Chusa,
644,
72,
728,
20.
Thing
257 Cal.
Cal.Rptr.
v. La
48 Cal.3d
plaintiff may only recover for trauma by witnessing injury
caused to a relative is also the zone of dan
ger. clearly This is enunciated comment
d to section 313 of Restatement and
inherent in the zone rule. There
fore, question the answer three is also
negative. danger requirement
The zone of infliction of emo
tional expanded distress should
allow a the zone outside recover for emotional harm caused
witnessing injury to others. We decline to
extend to those outside the zone though they may even reason
ably safety fear for their own and even
though they may witness to a close
relative.
HOWE, C.J., and Associate
ZIMMERMAN, J., concur.
STEWART, J., concurs the result.
DURHAM, (concurring Justice: in the
result).
Although I to hold continue the views
expressed my opinion in Johnson v. Rog-
ers,
(Utah 1988),
effect of the vote in majority that case as
precedent and concur the result. *8 Utah, Appellee,
STATE of Plaintiff THOMAS,
Richard Chandler Defendant Appellant.
No. 890503.
Supreme Court Utah.
March rules. notes that exercise Comment injury. application protect where care to others from section 313 have “no able solely duty of care Those who breach their basic emotional distress arises because compensate to person, required be peril to a third to others will harm or inju- injured, when the not those who are even negligence the actor has threatened Chettri, 1, (1983); v. 158 Ill. N.E.2d 5 Hunt Id. at 785. 294, 293, 76, App.3d 510 N.E.2d 110 Ill.Dec. 1324, (1987). generally v. Bowman See 1325 reading Although a literal subsection 397, 182, Williams, (1933); Md. A. 183 164 165 appear require plaintiff be to that the does not 609, Grossman, 24 301 N.Y.S.2d Tobin v. N.Y.2d danger obtain zone of in order to within the 559, 554, 419, (1969); v. N.E.2d 424 harm, 249 personal we recovery he or she Scarf if feared 294, 1276, Koltoff, Pa.Super. A.2d 1280 363 242 interpreting section believe the case law that 401, (1976); Brodsky, 436 Pa. 261 v. Niederman 313, requires within that the be which 84, Winter, (1970); A Tort Transition: A.2d 90 danger, proper is the limitation the zone of Distress, Negligent 70 Mental Therefore, require plain recovery. we that Infliction (1984). A.B.A.J. 62 See, danger. e.g., tiff Passenger Corp., 628 Dobelle National R.R. v. 313(2) § of Torts 1518, 14. See Restatement (S.D.N.Y.1986) (applying F.Supp. 1525 (1965). law); Jackson, Pennsylvania Ariz. 122 Keck 114, 668, (1979); Chicago Rickey v. P.2d 670 593 211, Auth., at cmt. d. 15. See id. Ill.2d 75 Ill.Dec. Transit impact, not beneficiary ries are not caused direct as the vicarious of a operation duty of foreseeable emotional dis- breach of to another.” A plaintiffs Those whom a danger tress. to defen- in the already zone of is threat- duty dant not breached of care will physical injury ened with as a result of recovery, they by- be denied are even negligence. defendant’s that Once initial injury standers witness the who another duty established, breach of the issue to whom the defendant has breached the merely then “becomes a matter of the duty. unexpected manner which the foresee- able harm has occurred.” scope duty of a defendant’s injuries Allowing recovery limited to are foreseeable those who result of his or her are carelessness. While a not within the zone of although may they defendant the harm may be able foresee believe would to direct victims if due care is not taken to therefore liability extend them vicarious prevent injury, he or she cannot foresee the for a duty defendant’s breach of a to third bystanders extent persons. to which witnesses to The zone of rule follows an accident will react to the events. To accepted principles of a defendant’s place duty upon protect a defendant to plaintiff’s right and a per- bystanders sonal, vicarious, who are not in of bodily Therefore, injury. we injury purely injury emotional is to danger concept adhere to the zone of as set potentially recovery. allow unlimited Al forth in the Restatement and as though psychological techniques modern this Johnson. We decline ex- diagnosis have made and treatment of tend of danger outside the zone objectively more verifia require and decline to defendant com- ble, techniques these do aid the defen pensate for fear in situations determining foreseeing dant what where the defendant has not breached a