The question for decision is whether the parents of a minor may recover damages for nervous shock, resulting from an аlleged breach of warranty and negligence whereby the minor was injured.
The complaint contains four counts. In the first, thе minor, through his guardian, seeks damages for personal injuries alleged to have been suffered from finding a decomposed mouse in a bottle of Coca Cola which he had partly consumed. It is further alleged that the beverage was warranted fit for human consumption, whereas, in fact, it was dangerous to health and life. Upon the same facts the seсond count charges negligence. In the third and fourth counts the father and mother, respectively, seek damages fоr nervous shock alleged to have been caused by the happening mentioned.
A motion to dismiss the third and fourth counts is mаde upon the ground that each fails to state a claim upon which relief can be granted.
Defendant relies upon the general rule that one may not recover damages for fright or mental shock from injuries received by another when the claimant himself sustained no physical injury. In the United States a limitation is placed upon the liability of a defеndant for a negligent act. Emphasis is laid upon the duty owed by the defendant to the particular plaintiff, rather than whethеr the negligent act of the defendant was the proximate cause of the injury. The reason for the limitation, especially in cases like the present, is that “once the defendant’s duty is held to extend to those outside the field of physical peril, a doctrine is stated to which no ra
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tional boundaries can be erected.” Waube v. Warrington, 1935,
In actiоns similar to the one at bar the courts have discussed and passed upon three situations:
(1) Where there is fright, shock or mental suffering due to peril to children or spouse and there is actual physical impact. In such cases the courts allow recovery on the theory that the plaintiff is within the field of those persons to whom defendant owed a duty. In the сase of Lindley v. Knowlton,
“Conceding the full force оf appellant’s first contention that no damages may be given for mere fright, we are of the opinion that the court sufficiently covered this matter in the instructions to which we have alluded. The complaint was not drawn upon the theory thаt the lady had merely suffered the mental discomfort of fear, but was based upon a claim of damages for permаnent, physical disorders proximately arising from the occurrences set forth in the pleading; and the court carеfully instructed the jury that no verdict for plaintiffs should be returned unless under the issues of the case both the fright and the alleged physical consequences thereof were proven by a preponderance of the evidence. * * *
“The rule which appellant seeks to invoke is only applicable in cases in which fright alone is made the gravamen оf action. Easton v. United Trade School Contracting Co.,173 Cal. 199 ,159 P. 597 ,L.R.A. 1917A, 394 . In the case at bar physical detriment was pleaded and there was evidence tending strongly to sustain the allegations of the complaint.”
(2) Where the peril to children or sрouse causes actual physical injury to the plaintiff. Such was the case of Cohn v. Ansonia Realty Co.,
“It is urged that it was plaintiff’s fright which was the proximate cause of her injuries, and that defendant is not responsible in damages for thе consequence of a fright caused by its negligence. For fright alone, unconnected with physical injury, it is true that no recovery can be had, but, when the fright results in an actual physical injury, a different rule prevails.”
(3) Where peril to children or spouse causes fright, nervous shock or mental suffering, but where there is no physical impact. Under the general rule, no rеcovery is allowed. In Clough v. Steen,
“It is well settled that, in an action for wrongful death, the recovery is limited to the pecuniary loss, and the grief of the survivor may not form the basis of an award (Munro v. Pacific Coast Dredging & Reclamation Co.,84 Cal. 515 ,24 P. 303 ,18 Am.St.Rep. 248 ); and no case nor rule of law has been brought to our attention which would support a rеcovery by plaintiff for the shock and grief, or injury consequent thereto, growing out of the knowledge of the death of hеr child. In the absence of such a right at common law or by statute, the plaintiff’s recovery cannot be upheld. The dеtriment to plaintiff must naturally ensue from the act complained of, but here we find the injury to plaintiff ensuing from the sight of the dead child. The condition of the latter was the result of defendant’s act, which impinged upon the child and not upon the plaintiff.”
I think the present case is controlled by the general rule, and the motion to dismiss counts three and four will be granted. If so advised, plaintiff may amend counts one and two to include expenses paid or incurred for the medical care of the minor.