Julie LA FLEUR, an infant, by David Blackey, Guardian ad Litem, and Lauren La Fleur, Plaintiffs-Appellants-Petitioners, v. Gerald MOSHER, The City of La Crosse, and The Home Insurance Company, Defendants-Respondents.
No. 81-1171
Supreme Court of Wisconsin
Argued October 4, 1982. Decided November 2, 1982.
325 N.W.2d 314
For the plaintiffs-petitioners there was a brief by David Blackey and Bosshard, Sundet & Associates, La Crosse, and oral argument by Mr. Blackey.
BEILFUSS, C.J. This is a review of an unpublished decision of the court of appeals which affirmed the judgment of the Circuit Court for La Crosse County granting the defendants’ motion for summary judgment.
For the purpose of considering the motion for summary judgment, the parties stipulated to the following facts:
On May 24, 1979, the plaintiff, Julie La Fleur, then fourteen years old, attended a concert at the Mary E. Sawyer Auditorium. At approximately 8:45 p.m., she became ill. Personnel from the auditorium contacted the La Crosse Police Department at approximately 9 p.m. Officers Warren Zielke and Thomas Patrasky went to the auditorium where they found the plaintiff on the sidewalk outside the auditorium near a puddle of vomit. The officers began to take the plaintiff home when, after traveling a short distance, she indicated that she was going to vomit. The officers stopped the car and allowed the plaintiff to get out. As a result of that episode, they felt that it would be best to take Ms. La Fleur directly to the La Crosse Police Department.
Lieutenant Gerald Mosher, the officer in charge of the shift, and Officer Patrasky, made several unsuccessful attempts to contact Ms. La Fleur‘s parents at their home. At approximately 10 p.m., the plaintiff again indicated that she was going to vomit. Because of the plaintiff‘s continued illness and the fact that Lieutenant Mosher had to attend to other duties, he put the plaintiff in an unoccupied cell. The cell was in a wing of the police station that was used infrequently and was empty on the night involved. Lieutenant Mosher placed the plaintiff in the cell without locking the door. He did, however, lock the door leading to the cell area in order
Lieutenant Mosher did not intend to keep the plaintiff in the station overnight. He intended to call her parents so that they could take the plaintiff home. However, Lieutenant Mosher forgot about the plaintiff and neglected to inform the next shift commander of her presence. However, he did sign a police form indicating that the plaintiff had been released on May 24, 1979. He did not fill in the blank that indicates the time of release because he intended to fill that in when she was picked up by her parents. The plaintiff‘s parents called the station on the morning of May 25, 1979. They were informed by the officer in charge that the plaintiff had been released on the 24th. The plaintiff was not found until approximately 11:30 a.m., on May 25, 1979.
When the plaintiff was taken to the cell she lay down on a cot as directed by Lieutenant Mosher and fell asleep within a short time. The plaintiff awoke at 1 a.m., experiencing thirst. She tried to get a drink of water from a faucet in the cell, but the water was too rusty to drink. She knocked on the cell wall with her fist on and off until 2:30 a.m., and then fell asleep. She awoke at 6:30 a.m., and knocked on the walls, slammed doors and yelled intermittently until 11:30 a.m., when she was discovered by the officers on duty.
During the period that the plaintiff was in the cell she was cold and hungry and became frightened that there would be a fire and she would die. She also became convinced that her parents knew she was in the holding cell and that they were leaving her there to teach her a lesson. The plaintiff suffered no physical injuries but was diagnosed by a psychiatrist as having suffered a traumatic neurosis as a result of the confinement. Ms. La Fleur, by her guardian ad litem, and her father, Lauren La Fleur, instituted this action against Lieuten-
The defendants moved for summary judgment on the grounds that the plaintiffs have failed to state a claim for relief because Ms. La Fleur suffered no physical injuries. The trial court granted the motion, relying on this court‘s decision in Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970). In Ver Hagen we held that there can be no recovery for negligent infliction of emotional distress unless the emotional distress is manifested by physical injuries. The trial court found that being cold, hungry and scared did not constitute physical injuries and therefore granted summary judgment. The court of appeals affirmed, also holding that there can be no recovery for negligent confinement which caused emotional distress in the absence of accompanying physical injuries. We granted the plaintiffs’ petition for review.
The issue on review is whether negligent confinement which results in emotional distress is actionable without accompanying physical injury. We conclude that under the appropriate and limited circumstances a plaintiff may maintain an action for emotional distress caused by negligent confinement in the absence of physical injuries.
This court has consistently expressed its reluctance to allow recovery for emotional distress in the absence of accompanying or resulting physical injuries. Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970); Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963); Wilson v. Continental Insurance Cos., 87 Wis. 2d 310, 326, 274 N.W.2d 679 (1979). The policy behind this reluctance is the fear of flooding the courts with fraudulent claims and exposing defendants to potentially unlimited liability for every type of mental disturbance. It further reflects the unwillingness of the law to step in where social controls are more applicable.
This court gave emotional distress independent legal status in Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963). In Alsteen the plaintiff brought an action to recover for emotional distress which resulted from the defendant‘s intentional conduct in the course of performing a contract to repair the plaintiff‘s home. The court recognized that due to the difficulties in proof of emotional distress the “... “‘judicial process is not well adapted to distinguishing valid from fraudulent claims....““” 21 Wis. 2d at 358, quoting Annot., Torts—Emotional Disturbances, 64 A.L.R.2d 100, 113 (1959). But the court found that the factual basis for denial of recovery had changed in the tort of intentional infliction of emotional distress. The court found that it had the “tools” to intelligently evaluate claims of emotional injury when the following four factors were present:
“(1) The plaintiff must show that the defendant‘s conduct was intentional; that is to say, the defendant behaved as he did for the purpose of causing emotional distress for the plaintiff.
“(2) In addition to being intentional, the defendant‘s conduct must be extreme and outrageous....
“(3) The plaintiff must demonstrate that the defendant‘s conduct was a cause-in-fact of his injury....
“(4) The plaintiff must demonstrate that he suffered an extreme disabling emotional response to the defendant‘s conduct....” 21 Wis. 2d at 359-60.
“The requirement that the conduct be extreme and outrageous reflects our concern with the difficulties surrounding proof of the existence of severe emotional harm, and proof of a causal relationship between the injury and the defendant‘s conduct. If the conduct is gross and extreme it is more probable that the plaintiff did, in fact, suffer the emotional distress alleged. Moreover, the requirement of extreme and outrageous conduct as a condition of recovery will avoid litigation ‘in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law.‘” (Emphasis supplied.) 21 Wis. 2d at 360, quoting Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard L. Rev. 1033, 1035 (1936).
This statement clearly indicates that the court recognized the outrageousness of the conduct as an assurance that the emotional distress is not feigned because of the probability that emotional distress will result from such conduct. Thus, in the tort of intentional infliction of emotional distress the very nature of the conduct involved provides a guarantee that the claim for emotional distress is genuine and serious.
This court has refused to extend Alsteen to emotional distress claims based on negligence and has continued to require proof of physical injuries. The leading case in Wisconsin on the negligent infliction of emotional distress is Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970). In Ver Hagen the court examined the Alsteen decision and found that the “tools” available to evaluate claims based on intentional conduct are not available in negligence actions. The court, recognizing Alsteen‘s concern with distinguishing real from fraudulent or trivial claims of emotional distress held that “... emotional stress must be manifested by physical injuries in actions based on negligence rather than intentional conduct.” 47 Wis. 2d at 227.
We generally affirm Ver Hagen and continue on public policy grounds to require proof of physical manifestations of emotional distress in negligence actions. The physical injury requirement is necessary in order to avoid flooding the courts with fraudulent or trivial claims based on negligent infliction of emotional distress. While this approach has been criticized as creating artificial barriers to recovery by deserving claimants, we believe that it is a practical solution to the problems of proof of emotional distress claims. This approach strikes the appropriate balance between the rights of injured parties to obtain a remedy for a wrong, and the rights of defendants to be free from potentially unlimited liability and the meritless claims.
We do not hold that in every instance of negligent confinement there may be recovery for emotional distress alone. Rather, the following standard of liability must be met in order for an injured plaintiff to recover:
- The defendant must have been negligent in confining the plaintiff.
- The confinement must be for a substantial period of time.
- The circumstances surrounding the confinement must be such that a reasonably constituted person would be emotionally harmed.
- The confinement must be a substantial factor in causing the emotional distress.
- The resulting emotional distress must be severe.
Applying the above factors to the instant case, we conclude that the plaintiffs have stated a claim for negligent confinement which resulted in emotional distress alone. This case is before the court on summary judgment, based on stipulated facts. But because the only purpose
This court has enunciated the following standard to be applied in determining whether a claim for relief has been stated:
“We have said that pleadings are to be liberally construed with a view to substantial justice to the parties. The complaint is not required to state all the ultimate facts constituting each cause of action; and the complaint should be dismissed as legally insufficient only if it is quite clear that under no conditions can the plaintiff recover.’ A claim should not be dismissed ‘unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations.’ Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 732, 275 N.W.2d 660 (1979).” Grams v. Boss, 97 Wis. 2d 351-52, 294 N.W.2d 473 (1980).
The stipulated facts establish a claim for negligent confinement resulting in emotional distress alone.4 The complaint and the stipulated facts establish that the defendants were negligent in confining the plaintiff in a cell of the La Crosse Police Department. Thus the first element is met. Second, the plaintiff was confined in the cell for approximately thirteen and one-half hours. This
We therefore conclude that the plaintiffs have stated a claim for relief and thus the trial court‘s decision granting summary judgment in favor of the defendants should be reversed.
By the Court.—Judgment reversed and cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
STEINMETZ, J. (dissenting). I dissent from the result reached by the majority and the reasoning used to reach that result. I would affirm the court of appeals.
This case proves the lawyers’ adage that hard cases make bad law. This is borne out by the majority‘s language: “However, we conclude that under the unique facts presented in this case an exception to the Ver Hagen rule should be recognized.” Thus, the majority attempts to carve out safeguards for this new cause of action in order to give this plaintiff an opportunity to present her claim to a judge or jury. However, by doing so, this has not built a cause of action on a firm founda-
The significant reasoning of the majority which forms the basis for this newly recognized claim for emotional distress in negligent actions is as follows:
“In the case of intentional infliction of emotional distress it is the extreme and outrageous conduct which guarantees that the claim is real. In the case of negligent torts, the requirement of physical manifestations of the emotional injury is the guarantee. We find that in the appropriate circumstances the tort of negligent confinement, though based on negligent conduct, by its very nature has the special likelihood of causing real and severe emotional distress. The guarantee that the claim is probably genuine is in the nature of the tort itself.” (Footnote omitted.) (Emphasis added.)
Later the majority states, “Emotional harm, in the appropriate circumstances, is a reasonably foreseeable consequence of negligent confinement.”
The majority establishes the standard of liability that must be met for a plaintiff to recover for emotional distress alone in a negligent confinement case as follows:
(1) The defendant must have been negligent in confining the plaintiff.
Comment: There is no mention here of an outrageous confinement situation and, therefore, any negligent confinement qualifies.
(2) The confinement must be for a substantial period of time.
Comment: I would imagine a “substantial period of time” depends on the circumstances, i.e., time of day or night, area of confinement, conditions of confinement.
The substantial period of time test will obviously have to be applied to every imaginable fact situation, with the trial court first having to determine on a motion for summary judgment whether the facts of a case qualify.
(3) The circumstances surrounding the confinement must be such that a reasonably constituted person would be emotionally harmed.
Comment: Here the plaintiff was 14 years old at the time of the events, and had been originally attended to by the police because she appeared unable to care for herself in public.
The majority allows this new claim only for “reasonably constituted persons” in society. Does that mean a person already emotionally disturbed cannot have that condition aggravated by the confinement? The standard of a “reasonably constituted person” is an objective test and appears to be present in the law otherwise found only in the standards for provocation in heat of passion manslaughter. There is a great difference between using a concept as a partial defense to a criminal action and using it to justify an award of damages.
(4) The confinement must be a substantial factor in causing the emotional distress.
Comment: This question is obviously for the jury; however, in this case, the majority is impressed with the diagnosis by a psychiatrist who opines the confinement caused the emotional distress. Due to the nature of claims of emotional disturbance without accompanying physical injury, the discipline of medicine that will
“While some courts may have blind faith in all phases of psychiatry, this court does not ... We commented in an earlier case that this court has frequently been dismayed by the examination of trial court records which showed a marked propensity of those who purport to have psychiatric expertise to tailor their testimony to the particular client whom they represent. State ex rel. La Follette v. Raskin, 34 Wis. 2d at 622, quoting Jessner v. State, 202 Wis. 184, 187, 231 N.W. 634 (1930).”
(5) The resulting emotional distress must be severe.
Comment: Why? Are only those “reasonably constituted” persons who suffer “severe” distress entitled to seek recovery? The reason for this standard is obvious. It is a recognition again that these claims will breed fraud and exaggeration. It is a subjective test of whether a particular plaintiff suffered severe emotional distress.
In this case, the court is holding that traumatic neurosis, if established at trial, is a severe emotional distress.
Dorland‘s Illustrated Medical Dictionary (24th ed. 1965) defines “neurosis” as follows: “neurosis ... A disorder of the psychic or mental constitution; in contrast with the psychosis, it is less incapacitating, and in it the personality remains more or less intact.”
The same text defines “traumatic neurosis” as: “traumatic n., one which results from an injury.”
Blakiston‘s Gould Medical Dictionary (3rd ed. 1956) defines “neurosis” and “traumatic neurosis” as follows:
“neurosis ... In psychiatry, one of the two major categories of emotional maladjustments, classified according to the predominant symptom or defense mechanism. Anxiety is the chief symptom, and though there is no gross disorganization of personality in relation to
“[T]raumatic neurosis. Any neurotic reaction in which an injury is the precipitating cause; encompasses combat, compensation, and occupational neuroses. The traumatic event usually has specific symbolic significance for the patient, which may be further enforced by secondary gain.” (Emphasis added.)
“Traumatic neurosis” by medical and psychiatric definition does not appear to be, without further exposition, a severe emotional disturbance as required by the standards. If it is, then an entirely new area of claim is open for which many people in society qualify at various times of stress in their lives.
It is interesting to fathom whether the trial judge will determine on a motion for summary judgment whether a severe emotional disturbance is claimed and then whether the jury will only be allowed to award damages for an emotional disturbance to a “reasonably constituted person” if it is severe.
The court in my judgment has created an unworkable cause of action merely because it feels empathy with this young plaintiff.
I am authorized to state that Mr. JUSTICE LOUIS J. CECI joins in this dissent.