Lonnie Leroy OWENS, Sr., Plaintiff-Appellant,
v.
CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, а corporation,
et al., Defendants-Appellees.
Ida Ruth OWENS, Plaintiff-Appellant,
v.
CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation,
et al., Defendants-Appellees.
Nos. 72-1653, 72-1654.
United States Court of Appeals,
Eighth Circuit.
Submitted Feb. 16, 1973.
Decided June 12, 1973.
James R. Welsh, Omaha, Neb., for appellant.
Michael F. Kinney, Omaha, Neb., for appellee, Neis.
David A. Johnson, Omaha, Neb., for appellee, Childrens Hospital.
John T. Grant, Omaha, Neb., for appellee, Lombardo.
Before HEANEY, Circuit Judge, BENSON,* Chief District Judge, and WEBSTER,** District Judge.
HEANEY, Circuit Judge.
Plaintiffs appeal from the trial court's dismissal of their actions on the grounds of failure to state a claim upon which relief could be granted.1 Rule 12(b)(6), Federal Rules of Civil Procedure.
The facts for purposes of this review are those allеged in the plaintiffs' complaints. On March 2, 1970, the plaintiffs admitted their son to Childrens Memorial Hospital, Omaha, Nebraska. He remained under the care and treatment of the hospital and the defendant doctors until he died on April 2, 1970. The plaintiffs allege that the defendants negligently failed to properly diagnose, treat аnd care for their son. They allege that they were in close proximity to their son throughout the period of his hospitalization and that they personally witnessed the negligence and malpractice of the defendants, and the physical and mental suffering of their son. They allege that as a direct and proximate result of the defendants' negligence, they suffered and continue to suffer physical and mental anguish, great emotional disturbance, shock and injury to their nervous systеm.
The sole issue is whether, under Nebraska law, a parent can recover damages for the mental distress accompanied by physical injury resulting from witnessing thе suffering of his child, which, in turn, was caused by the negligence of the child's physicians and hospital personnel.
Nebraska law governs this diversity action. See, Erie R. Co. v. Tomрkins,
The crucial question is whether the trial court was correct in holding that the Nebraska Supreme Court's deсision in Rasmussen v. Benson,
The trial court held that Rasmussen was not оn point. It agreed that the case stands for the abolishment of the impact doctrine in Nebraska, but argues that the doctrine was abandoned only where the plaintiff was directly imperiled by the defendant's negligent act. The court recognized that a broad reading of Rasmussen would permit recovery here, but statеd that the Nebraska Supreme Court had indicated in the opinion that the case was to be read narrowly and confined to its facts.2 It then distinguished this case from Rаsmussen. It reasoned that Rasmussen suffered, not as a result of witnessing negligence to another person, but for the loss of his own dairy business, which represented his total lifе savings and energy. Moreover, the court noted that Rasmussen has not been cited by the Nebraska courts since being handed down, and suggested from that fact that Rаsmussen was an anomaly in Nebraska law.
* * *
* * *
The court reasoned that even if one assumes that the plaintiffs could prove that a sufficient "physical injury" has resultеd from the emotional disturbance and mental anguish, there was no cognizable cause of action here because the plaintiffs, themselves, had not been the direct objects of the defendants' negligent acts. It further stated that even if the Nebraska Supreme Court were to allow recovery without impaсt where the plaintiff was a witness to the peril of another, rather than the direct object of the peril, the court would permit recovery only if the plаintiff had been either within the "zone of physical danger" or put in fear for his own safety.
While we are not bound by the trial court's view of local law, we must give special weight to it.3 Larry Luke, et al. v. American Family Mutual Insurance Company, Nos. 71-1348, 71-1374,
The denial of recovery is consistent with the position taken in the Restatement (Second) of Torts, Secs. 313 & 436 (1965), and by the overwhelming majority of the courts in the United States.4 See, Annot.,
Affirmed.
Notes
District of North Dakota, sitting by designation
Eastern District of Missouri, sitting by designation
The published opinion of the trial court may be found at
In the second Rasmussen decision, the majority stated:
"In order that it may not be misunderstood, in this case the deceased was confronted with a series of disturbing facts. * * *
"This case can be made more difficult and the opinion seem to reach the wrong conclusions by a misconception of the facts in the case. If the facts are different than presented in this case, different reasoning and a different conclusion might be necessary. * * *"
Rasmussen v. Benson,
These limiting rеmarks were apparently made in response to a vigorous dissent which had suggested that the decision would permit recovery in situations such as that in the instant сase.
In Larry Luke, et al. v. American Family Mutual Insurance Company, Nos. 71-1348, 71-1374,
"This circuit has often stated that where the trial judge arrives at a permissible conclusion with respect to the law of his state, such conclusion will be binding on appeal. * * * Homolla v. Gluck,
"Other circuits have not 'bound' themselves to the district judgе's initial choice of state law. Rather, they tend to accord 'great weight' to the district court's determination of local law unless they believe it to be clearly erroneous. See e. g., Freeman v. Heiman,
In recent years, some jurisdictions have permitted a plaintiff to recover for shock and mental anguish incurred from witnessing injury to a third person where the presence of the plaintiff was foreseeable. See, D'Ambra v. United States,