Lead Opinion
Tommy R. and Beverly Jarrett appeal the trial court’s grant of summary judgment in favor of Michael B. Jones. Mr. Jarrett sued Mr. Jones for negligently causing a collision between Mr. Jarrett’s tractor-trailer and Mr. Jones’ car, resulting in the death of Mr. Jones’ two-year old daughter. Mr. Jarrett’s claim sought damages for minor physical injury and emotional distress after he viewed the body of Mr. Jones’ daughter. His wife, Beverly Jarrett, sued for loss of consortium. The trial court granted summary judgment for Mr. Jones on the basis that the Jarretts failed to present facts that would entitle them to recover damages for Mr. Jarrett’s emotional distress as a bystander. Because Mr. Jarrett is a direct victim of the automobile accident and not a bystander, the judgment of the trial court is reversed, and the cause is remanded.
Factual and Procedural Background
On June 8, 2004, Tommy Jarrett, a professional truck driver, drove his tractor-trailer eastbound on Interstate 44 in Lac-lede County. At the same time, Michael Jones drove westbound with his wife and two daughters in the vehicle. It had been raining heavily, but the rain was lessening. At this point, Mr. Jones lost control of his automobile which spun across the median and collided with Mr. Jarrett’s truck.
The collision caused Mr. Jarrett’s knees to hit the steering wheel and dashboard, twisting his “ankle, knee.” Immediately after the collision, Mr. Jarrett talked to a man who ran up to his truck to see if he was injured. He told the man he was all right and to check the other vehicle. Mr. Jarrett then jumped out of his truck and ran to Mr. Jones’ car to check on the occupants. He saw Mr. Jones and his wife badly injured and saw the body of Mr. Jones’ two-year old daughter, Makayla, who was killed in the collision.
Mr. Jarrett and his wife, Beverly, brought suit against Mr. Jones for negligence in causing the collision. Specifically,
Mr. Jones filed a motion for summary judgment, which the trial court granted. Specifically, the trial court found that the Jarretts admitted that the sole cause of Mr. Jarrett’s emotional distress was the viewing of Makayla’s body after the collision, and not the collision itself, since the Jarretts did not deny that contention in Mr. Jones’ statement of uncontroverted material facts. As such, the trial court found that Mr. Jones was entitled to judgment as a matter of law because: (1) Mr. Jarrett was not in the zone of danger when he viewed Makayla’s death because he did not fear personal injury to himself at that point in time, and (2) Mr. Jones owed no duty to prevent Mr. Jarrett from viewing Makayla’s body because he was injured and unconscious at the time.
The Jarretts raise three points on appeal from summary judgment.
Standard of Review
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04. Whether summary judgment is proper is purely an issue of law, and appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,
Recovery of Damages for Emotional Distress in Negligence Cases
The Jarretts first claim that the trial court erred in entering summary judgment in favor of Mr. Jones because they presented facts that would permit them to recover damages for Mr. Jarrett’s emotional distress as a direct victim, pursuant to Bass v. Nooney Co.,
The law applicable to recovering damages for emotional distress arising from negligence claims has developed significantly in the past quarter of a century. Prior to 1983, Missouri defendants were not liable for negligence resulting only in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. Tngg v. The St. Louis, Kansas City & Northern Railway Co.,
In Bass, this Court abandoned the impact rule and adopted new and less restrictive requirements a plaintiff must establish to recover damages for emotional distress.
The issue of liability for a bystander’s emotional distress was addressed seven years later in Asaro. In Asaro, the Court undertook to resolve the question left open in Bass: “May a plaintiff recover for emotional distress resulting solely from observing injury to a third party caused by a defendant’s negligence?”
In the case at bar, the Jarretts characterize their claim as a direct-victim claim, while Mr. Jones asserts that their cause of action is a bystander claim for negligent infliction of emotional distress. Neither Bass nor Asaro addresses the distinction between a “direct victim” and a “bystander.” Bass does describe bystander cases in a footnote as being “where a plaintiff
Direct victims are persons directly involved in. the accident whose emotional distress is either caused by fear for their own safety or caused by the suffering of another. See Kraszewski v. Baptist Med. Ctr. of Oklahoma,
Where the plaintiff is a direct victim of the accident caused by the defendant’s negligence, the defendant is liable for the foreseeable emotional distress resulting therefrom. The plaintiffs cause of action is not limited to emotional distress arising from fear for the plaintiffs own safety. See Eyrich For Eyrich v. Dam,
This Court recognizes the view that a plaintiff may suffer some emotional distress as a direct victim and some emotional distress as a bystander. See Kapoulas v. Williams Ins. Agency, Inc.,
First, Asaro ⅛ recognition of a cause of action for bystander recovery expanded liability for emotional distress; it did not limit the scope of recovery for direct-victim plaintiffs. As discussed above, Asaro addressed an issue explicitly left out of the Bass analysis — whether a bystander may recover for emotional distress from observing injury to a third party. Asaro,
Moreover, a plaintiffs direct involvement in an accident influences the plaintiffs emotional distress because the plaintiffs mental injuries are generally inseparable from the plaintiffs role in the event. See Eyrich,
The facts in this case demonstrate how a direct victim’s emotional distress from viewing injuries or death of another person involved in the accident are inseparate from the direct victim’s role in the event. In their response to Mr. Jones’ motion for summary judgment, the Jarretts admitted that his emotional injuries resulted from the death of Makayla in the collision. Specifically, the Jarretts admitted that Mr. Jarrett’s emotional struggles, grief, and feelings of guilt after the collision stemmed from his viewing Mr. Jones’ deceased daughter:
(a) The “worst image” for plaintiff was the “the ‘baby’ lying in the mangled car”;
(b) Plaintiff experienced “a great deal of grief for the child who died”;
(c) Plaintiff experienced the “paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time”; and
(d) Plaintiff “visualize[d] the little girl being in heaven” and “said she’s the lucky one.”
These admissions demonstrate that the grief and distress Mr. Jarrett experienced were a result of his participation in the accident that killed Makayla, and not simply from viewing her body. The totality of these admissions establishes that Mr. Jarrett’s emotional distress arose from his direct involvement in the collision, coupled with Makayla’s death.
The evidence, viewed in the light most favorable to the Jarretts, shows that Mr. Jarrett was driving a vehicle that was involved in a collision caused by Mr. Jones’ negligence. The collision resulted in the death of Makayla Jones. Mr. Jarrett viewed her dead body and, subsequently, suffered emotional distress. Although he is suing for emotional damages caused by seeing a third party’s death, his role was not that of a passive, shocked witness. His direct involvement in the collision greatly influenced his mental and emotional injury, causing him to have strong feelings of guilt and sadness for his part bringing about Makayla’s death.
The fact that Mr. Jarrett got out of his truck and ran to check on the individu
Courts from other jurisdictions faced with similar circumstances have likewise held that the bystander limitations do not apply. See Long,
Trial Court Erred in Granting Summary Judgment
The Jarretts’ cause of action under these circumstances is a personal injury action for the negligent operation of an automobile where, as a direct victim of the accident, Mr. Jarrett claims damages for emotional distress from that accident. Any action for negligence requires the plaintiff to establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the plaintiffs injury was proximately caused by the defendant’s failure. Krause v. U.S. Truck Co., Inc.,
Applying the law to the circumstances of this case, Mr. Jones owed a duty to exercise the highest degree of care in operating his automobile. Section 304.012.1, RSMo 2000. The record, viewed in the light most favorable to the Jarretts, would support a finding that Mr. Jones breached this duty. The Jarretts presented the deposition testimony of Mr. Jarrett
With respect to causation, the Jarretts set forth facts that would support a finding that Mr. Jarrett suffered post-traumatic stress disorder immediately after the accident and was treated for the disorder by his family physician and two licensed social workers. The affidavit of one of the social workers states that, in her professional opinion, Mr. Jarrett suffered from severe, acute post-traumatic stress disorder as a direct and proximate result of being personally involved in a collision that resulted in the death of a child.
With respect to the Jarretts’ claim of damages for emotional distress, they presented facts that would support a finding that the two additional Bass elements for recovering damages for emotional distress are met. First, with respect to foreseeability, it is foreseeable that the negligent operation of a vehicle would cause an accident resulting in serious injury or death and that an ordinary person directly involved in the accident involving death or serious injury to others would be traumatized and suffer emotional distress. See Bass,
Second, with respect to the severity of Mr. Jarrett’s emotional distress, Mr. Jarrett testified that, after the accident, he “couldn’t focus on anything,” “wanted to die,” “didn’t want anything to do with anybody,” and kept going over in his mind what he could have done to avoid killing Makayla. Mr. Jarrett and his wife testified in their depositions that, as a result of his severe emotional distress, he was unable to drive a vehicle for weeks after the accident and was unable to work as a truck driver for four months. Mr. Jarrett’s family physician prescribed to him anti-anxiety and prescription sleep medications to deal with the effects of his emotional distress. Mr. Jarrett also received months of counseling and therapy. He was treated by two licensed social workers, both of whom diagnosed him with post-traumatic stress disorder. These facts set forth by the Jarretts would support a finding that Mr. Jarrett’s emotional distress or mental injury was medically diagnosable and of sufficient severity to be medically significant.
Because the Jarretts presented facts that, if true, would prove each element of their claim, the trial court erred in granting summary judgment in favor of Mr. Jones.
Conclusion
The trial court misapplied the law when it applied the limitations for bystander recovery to the Jarretts’ direct-victim claim of damages for emotional distress. The record, viewed in the light most favorable to the Jarretts, does not establish that there were uncontested facts upon which Mr. Jones is entitled to judgment as a matter of law. The trial court, therefore, erred in granting Mr. Jones’ summary judgment motion.
The Jarretts also assert that they presented facts entitling them to recover damages for emotional distress under the more
The judgment of the trial court is reversed, and the cause is remanded.
Notes
. The Jones’ other daughter sustained minor physical injuries.
. Mr. Jarrett’s amended petition states, in relevant part:
14. As a direct and proximate result of the negligent acts and omissions of the Defendant, Plaintiff feared for his own life and safety and sustained the following injuries and damages:
(a) injuries, including minor physical injuries and post traumatic stress disorder;
(b) past expenses for medical treatment and medications in excess of $1,623.57;
(c) past wage and income loss in excess of $45,000; and
(d)past pain and suffering, mental anxiety, emotional trauma and anguish, stress, which significantly affected his ability to perform usual daily activities, including returning to work.
. Mr. Jones moved to strike the Jarretts' brief and dismiss the appeal for failure to comply with Rule 84.04(c). Upon review, this Court finds that the motion to strike and dismiss is baseless and, therefore, is overruled.
. There are also practical difficulties in creating an artificial distinction as to when a direct victim becomes a bystander — when the direct victim gets out of his vehicle to offer aid to persons in the other vehicle involved in the collision, as in this case, as compared to when the direct victim turns his head to view another person in his own vehicle.
Dissenting Opinion
dissenting.
I respectfully dissent.
At the outset, I note the sad irony that the party to this action who is most subject to emotional distress — the father who lost his child — is the party being sued for having caused emotional distress to a stranger who merely saw the child. This, it seems to me, is the unfortunate result of the majority’s misreading and misapplication of Bass v. Nooney Co.,
Bass, relying on the Restatement (Second) of ToRts sec. 313(l)(a), holds that
a plaintiff will be permitted to recover for emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.
Bass,
Under the more stringent zone of danger test, plaintiff here could not recover because he was not in a zone of danger, that is, he was not placed in a reasonable fear of physical injury to his own person when he viewed the dead child subsequent to the accident. The majority does not contend otherwise. Instead, the majority holds that plaintiff was a “direct victim” of defendant’s negligence under the Bass test, rather than a “bystander” (indirect victim?) under Asaro’s zone of danger test. A “direct victim,” according to the majority, is a plaintiff “directly involved in the accident, whose emotional distress is either caused by fear for [his] or her own safety or caused by the suffering of another.” As I understand this position, plaintiff was a “direct victim” because his injury — his emotional distress in viewing the body of the dead child — was incurred as part and parcel of the accident that caused the death of the child; in other words, both the accident- itself and the plaintiffs subsequent viewing of the body were just a single event. The point is that the majority can classify plaintiff as a “direct victim” and avoid the zone of danger test only by
And that gives rise to my initial disagreement: The evidence does not support the single event characterization, and in fact, there was a significant temporal disparity between the accident itself, the subsequent viewing of the body, and the onset of the distress to plaintiff. Under the majority’s description of the scene, a collision occurred, and immediately thereafter plaintiff “talked to a man who ran up to his truck to see if he was injured.” Plaintiff “told the man he was all right and to check the other vehicle,” and then plaintiff, himself, “jumped out of his truck and ran to [defendant’s] car to check on the occupants.” It was at that time he first saw the body of the child, which led to his emotional distress. Plaintiff now concedes that he did not suffer emotional distress from the accident itself, but that the sole cause of his emotional distress was the viewing of the child’s body after the accident. The facts, then, are clear that although plaintiff had been a participant in the accident, he was not injured in it, and by the time he observed the body, the accident was over. And at that point, plaintiff was no longer involved in the accident, but was a bystander attempting to help the victims of the accident.
Although the majority “recognizes the view that a plaintiff may suffer some emotional distress as a direct victim and some emotional distress as a bystander,” which accommodates the kind of temporal distinction at play in this case, it rejects that view in favor of the notion that a plaintiff’s emotional distress caused by the accident itself is “generally inseparable” from the emotional distress caused by observing a third-party’s injuries. But that determination, of course, flies in the face of plaintiff’s admission that he suffered no emotional distress from the accident, but only from the subsequent viewing of the body. Inexplicably, the majority finds that “[t]hese admissions demonstrate that the grief and distress [plaintiff] experienced were a result of his participation in the accident that killed [the child], and not simply from viewing her body.” I am simply at a loss to understand how plaintiff’s emotional distress was inseparable from the accident when the plaintiff, himself, maintained that his distress was separable.
This extended attempt to sort out the majority’s maneuverings belies my greater concern about the case, which is that under Asaro, the Court has no legitimate reason to distinguish between liability to a “direct victim” and liability to a “bystander.” That distinction, which according to the majority turns on “whether the plaintiff was directly involved in the accident,” has no basis in Bass or Asaro. Although the majority states that Asaro “expanded liability for emotional distress by recognizing a new cause of action for bystander plaintiffs,” Asaro did no such thing. Asa-ro is instead a limitation on Bass because it applies in all cases in which plaintiff’s emotional distress resulted solely from observing injury to a third party, whether or not the observation occurred at the time the negligent act was committed (the collision in this case) or at any time thereafter (the observance of the injury after the collision). The holding of Asaro is unequivocal and unqualified: “[A] plaintiff may recover for emotional distress resulting from observing physical injury to a third person only if the plaintiff is within the zone of danger.” Asaro,
[wjhile [mother] was intimately involved with her son’s treatment and understandably distressed at the condition of his health, she was not the patient. She faced no personal peril. Her understandable distress follows solely from seeing the harm and suffering endured by her young son. Her petition states no facts, nor permits such inferences as might bring her averments within the zone of danger standard we adopt today.
Id. at 600. Neither the mother who observed her suffering child in Asaro nor the stranger who observed the dead child in this case were in a zone of danger, but the stranger recovers, and the mother does not. In these situations, one would think the law should favor the mother of a child before a stranger to a child, or at least that the law should apply the same to both.
For the foregoing reasons, I would affirm the judgment of the trial court dismissing plaintiffs claim.