Saechao v. Matsakoun

April 9, 3, 1985, February Argued In Banc affirmed submitted June resubmitted 1, 1986 (301 320) July petition for review allowed denied June reconsideration SAECHAO, Appellant, al, et MATSAKOUN Respondents. A34147)

(A8406-03428; CA P2d 165 Portland, Hendricks, the cause and filed argued Stephen C. appellant. the brief argued Barton, Portland,

Robert E. the cause for respondents. Cosgrave, With him on brief Kester, Gidley Lagesen, Crowe, & Portland.

RICHARDSON, J. dissenting.

Warren, J.,

RICHARDSON, J. presents questions impression of first

This case who witnesses the whether and when family a member of the immediate caused death of resulting for serious emotional distress recover The trial court dismissed the the accident.1 plaintiffs2 for failure to state action as to two of the three against A final was entered those judgment claim. 67B, they appeal. ORCP pursuant alleged: Plaintiff

“II. 29,1983 July two-year Ou Fou “On or about old Saechao tricycle apartment riding his in the on the sidewalk Portland, Oregon. Halsey Square in complex known as His * * * brother, immediately adjacent Fou Saechao was Kae sidewalk, fifteen feet within and within a him. Also on ** * brother, danger’ his Fou Saechao and ‘zone of were Sou sisters, Farm Fou Saechao. one of his

“III. 29,1983, July on Defendant approximately “At 10:20 a.m. learning park 1982 Volks- Matsakoun was a Khamchana Quantum Stationwagon that she owned. Defendant wagen pursuant operating temporary the vehicle Matsakoun permit No. 3960626. instruction time, Boupha Defendant Thon was instruct- “At the same Quantum operation of ing in the the 1982 Ms. Matsakoun 1 Presbyterian Intercommunity Hosp., Supreme in Norwest v. The Court noted precise 18, (1982), yet 543, 559, had this n P2d 318 that it not examined 293 Or 652 In it. Court has had occasion consider this court nor the issue. Neither (D predicted Inc., 1962), Hexol, Supp Rogers the district court F 453 Or federal 218 (1933), deny Oregon Torts 313 and § would followthe Restatement of that state courts recovery plaintiff, in the a distress absence of who had suffered emotional product. being injured physical labeled of her son’s as result Rogers. result, wholly reasoning in Although not the a similar we do endorse we reach Pets, 1054, App Taylor’s rev den 299 584 74 700 P2d Or Sease v. Or physical harm are not recoverable for emotional distress without holds that plead product liability in Sease did under ORS 30.920. in a action here, recovery. ground n Sease not control negligence at 7. does as a for 30.920, interpretation is not relevant to this case. which it rests on an ORS because siblings guardian suffered emotional the who ad litem for three Plaintiff is “plaintiffs” distress, as in this he on behalf. We will refer to children and sued their opinion. standing on the street Boupha was Stationwagon. Mr. Stationwagon. sidewalk, Quantum of the outside “IV. Quantum Station- backed the

“Defendant Matsakoun curb, striking Ou Fou the sidewalk wagon up across over body Saechao, and smashing Saechao’s head and Ou Fou killing apartment building, wall of an against the brick instantly. child

“V. tricycle grab Ou Fou Saechao’s Fou Saechao tried “Kae car, way oncoming but was him pull and out struck, bruised, physically injured the car and and contused Saechao, Fou Kae Fou Sou away from his brother. knocked the death of Saechao all witnessed and Farm Fou Saechao immediately body scene and brother and observed their after the accident.” children who complaint alleges that the three accident all suffered “extreme

witnessed trauma, and which will continue presently which continues manifested itself in several the future. The trauma has into and nausea, headaches, physical trauma ways, including sought damages relief The three claims for nightmares.” emotional distress.” The “negligent defendants’ infliction of claim, Saechao, sought damages also first that of Kae Fou injuries. his claims, third

The trial court dismissed the second and motion and Farm Fou. It denied defendants’ those of Sou Fou claim, Fou’s, relying, apparently, on the first Kae to dismiss rule,” only person “impact provides the so-called injures from the same force which who suffers distress due to wit- third recover for emotional See Prosser and person. the third nessing 1984). (5th ed Plaintiffs Keeton, Law of Torts 54§ Oregon not the law of “impact rule” is contend one of several rules which adopt apply that we should shall discuss range in a of cases. We allow broader court that the trial theories. Defendants contend each of those claims. to dismiss the two rule properly applied Senders, 457, Fehely v. 170 Or Defendants claim that that, person for a to recover (1943), holds in order P2d 283 135 suffered an antecedent distress, she must have for emotional 344 case, pregnant In

physical injury. plaintiff that was injured in a car accident. The issue was woman who was might that her child plaintiffs apprehension whether the person or deformed as a result of an to her born dead first damages. opinion was an element of 170 Or at 460. is that, phys states the rule when a general person injured ically, anguish also recover for mental distress and she physical injury. flow 170 naturally directly opinion types at The rest deals with what Or 461. are consequential suffering properly compensable mental is any that emotional distress which not “abnormal concludes 475. Fehely Or at holds compensable. or unreasonable” 170 anguish plaintiff that could recover for mental injury, her but it not answer resulting physical own does question person here of must suffer a direct whether emotional before that can recover distress. recovery for Oregon permitted cases have

Several a physical injury. result of emotional distress was Cattle, See, 709, e.g., v. Or P2d 1333 Mooney Johnson 291 634 (1981) (intentional rela- interference with contractual Bureau, 443, 568 tionship); Billing v. Central 279 Or Turman distress); (1977) (intentional infliction of emotional P2d 1382 Helikson, (1977) 781, (negli McEvoy Or 562 P2d 540 v. 277 Stride, mother); 269 Fredeen v. gence returning passports (1974) (conversion v. 369, P2d 166 Macca dog); Or 525 414, (1972) Co. 262 Or 495 P2d 1193 of N.W., Gen. Telephone directory, considered to be (negligent listing telephone Oil, 310, nuisance); Douglas v. Or 445 P2d 590 Humble 251 Burns, (1968) 607, 243 Or 415 P2d (trespass); City v. Hovis (unauthorized v. (1966) spouse); disinterment of Hinish 29 Co., (1941) (invasion & 113 P2d 438 Meier Frank cases, however, the In each of privacy). those conduct, although no the direct victim the tortious Presbyterian Norwest v. Intercom injury was involved. In the court munity Hosp., 293 Or P2d 318 emo- solely fact specifically stated that deny damages. is no reason to psychic tional pleadings support decision to whether the can as In policy. case be made as a matter of in this must Inc., Co., P2d 852 Meyer 60 Or 4-D Insulation (1982) , recovery for distress caused denied we negligent damage plaintiffs property. In that opinion categorized we the cases cited above and in an attempt others principle to distill a indicating damages when for emotional distress are appropriate. Noting that the cases do not form precise pattern, we described four categories recovery in which torts, is allowed: private nuisance, intentional invasion of privacy and App miscellaneous cases. 60 Or at 73-74. We tendency Supreme noted a grant recovery by Court to species of policy case as matter of and that categories basis, tended to be defined on an ad hoc not on the basis of simple foreseeability. Likewise, America, in Flowers v. Bank of 67 Or 679 P2d rev den 297 Or 601 we examined the defendants’ conduct to determine <<** * is, whether that careless invasion as a matter of

policy, importance protection by sufficient to merit an * * *” damages only award of if the result is emotional distress. The negligence asserted in Flowers notify- was the defendant’s ing restaurant plaintiffs cancelled, credit card was which caused the restaurant to refuse to honor the card. In both Meyer and Flowers we held that the nature of the defendants’ conduct and the plaintiffs’ emotional upset did not warrant an extension of liability.

Although Meyer we stated that cases in the “mis category appear cellaneous” recognize liability on an ad hoc basis, there is a common thread to those cases. In each the determined, court law, as a matter of that the defendant owed the plaintiff of care and that the kind of harm which reasonably resulted was foreseeable. Considering the cases in which the Supreme Court has awarded damages solely for distress, we think that injuries serious emotional sustained aas result of observing a sibling killed can be compensable under some circumstances. Under the rationale Fehely Sanders, supra, it seems clear that judge the trial correctly Fou, ruled that Kae who was physically injured, has stated a claim that would allow his emotional distress. question is whether Farm Fou and Fou, Sou who suffered no injury, direct have a claim for such damages.

In Norwest v. Presbyterian Intercommunity Hosp., supra, Court rejected plaintiffs claim for loss “parental consortium” due to the negligent defendants’ mother. The court treated

incapacitation plaintiffs companionship as one for tortious society for loss of claim history legislative and looked to family relationship to a The court held that support for such a cause of action. to find “exception support creating its legislative policy did liability person’s loss negligence for one from the limits on Or at 565. The court in Norwest to another.” 293 real, to be prove could well assumed that defendants; by the nev reasonably foreseeable severe ertheless, the court ruled:

“* * * ordinarily plaintiffs action is that The obstacle to gives rise to an negligence legal as a source of immediately compensate injured, not obligation to consequence in anyone predictably suffers loss who consequential person’s loss has injury, unless for that foreseeability.” legal its 293 Or at 569. source besides Fou emotional distress suffered Sou Although the related to arguably proximately more and Farm Fou here than was the loss of injured person the third the event that Norwest, in we conclude that similar alleged consortium Norwest, Sou Fou plaintiff are involved. Like the principles loss in conse- persons Farm Fou were who “suffered] person, only and the basis injury” to another quence [the] is that they compensation should receive concluding fact, found, as a matter of might loss consequential their have been foreseeable. to have evolved as the appear

Four different rules damages are emotional distress determining tests for when in this case. The in situations similar to the one recoverable test, be a direct requiring that there first is the the emotional person who suffers accompanying injury compensability. to its prerequisite distress as a rule, danger, zone of would allow The second a fatal due to for serious emotional distress personally within the plaintiff if the to a third negli the defendant’s physical impact danger zone of states, majority current rule in the might This be the gence. 219, 228-29, 473 NYS2d Sanperi, v. 61 NY2d see Bovsun by the (1984), adopted position and is also the 461 NE2d 843 (1965). (Second) Torts, The facts Restatement § York scope of that rule. New here were within the pleaded danger recently Appeals zone of reaffirmed the has Court of rejection and a rule of both the well as its rule as Sanperi, supra, holds: v. broader rule. Bovsun “* * * plaintiff exposes a a defendant [W]here death, plaintiff bodily injury to an unreasonable risk of recover, damages, proper of his or her. as a element consequence of the observa- injuries suffered his or her of a member of the serious or death tion of course, is established family assuming, of that it immediate — bringing was a substantial factor that the defendant’s conduct (Footnote at 230-31. such or death.” 61 NY2d about omitted). adopted by first California The third rule was Rptr Legg, 441 P2d 912 68 Cal 2d 69 Cal Dillon v. rejected rule in favor of the zone of foreseeability injury. Dillon set broader rule based on the case-by-case guide determina courts in a out three factors to (1) liability: plaintiff was located near whether the tion (2) resulted from accident; observing the emotional distress whether learning others; and about it from

the accident or (3) “closely related.” and the victim were whether the 68 Cal 2d at 740-41. compen- expansive rule, fourth, would and most injury simply psychic the basis of its reasonable

sate a on reject foreseeability. Supporters guidelines the restrictive of this rule knowledge, Only state, has one to our of Dillon. Paugh psychic injury. compensate gone to this extent to does not even Hanks, 451 NE2d 759 6 Ohio St 3d by person actually injured require the conduct that another and is in fact feared if an is foreseeable of the defendant plaintiff. wholly foreseeability straight turns on test liability imposing Court that rationale rejected therefore, are us, The choices available in Norwest. (or danger impact rule rule, rule or the Dillon the zone of them). test that the Dillon do not see some variation of We danger way any significant rule for the zone of differs in prongs purposes are of Dillon The first and second of this case. danger, necessarily plaintiff and was in the zone met if the relationship prong here. also satisfied the third —was —close danger test, adoption zone of the Dillon or of either Our in Norwest v. squarely contrary holding although not Intercommunity Hosp., supra, would run afoul Presbyterian of action for against recognizing its new causes admonition to another. resulting from a direct injuries indirect Sanperi, supra, Bovsun v. danger that the zone of concludes does not create a damages, rule entails a new element of but a agree. Allowing action. do not new or a new cause of We emotionally by witnessing who has suffered plaintiff simply because the damages to another to recover a cause of danger would establish was within zone Oregon. previously recognized action not policy rule seems to us to reflect the best clear, it creates a clear provides The line it option. plaintiffs being and the relationship compensability between rule duty. Although a a the zone victim of breach recovery by persons more who undoubtedly would result distress, provide it would not sustain serious emotional may those who and those rational differentiations between witnesses a example, parent not For a who who recover. if the endangered a is not being physically child struck car window, if the endangered but is parent watching child; proximity to the how- parent is outdoors and in close trauma would differ ever, likely not the emotional it is superior A is not vantage points. rule because of the different it allows to more simply its alternatives because the nature of the if there is no connection between plaintiffs, the additional allowing and the reason for in the relationship being between to recover them. There is no trau- being subject physical danger zone of that the trial the event. We hold matization from the claims. dismissing court did not error Affirmed.

WARREN, J., dissenting. circumscribing acknowledge choosing rule

I degree bystanders involves defendant’s arbitrary in some a decision is The fact that arbitrariness. In principled. picking it cannot be does not mean that respects Oregon prece- rule, only ignores majority widely been which has dents, clings principle but also position. tort law in an archaic Oregon and leaves repudiated by any Moreover, supported decision is not majority’s

349 persuasive reasoning. allow would a rule which can I select they recovery by plaintiffs plead in the least that are at who danger negligence. zone of defendants’ only gives support majority to

The reason which the “clearly provides impact line the rule is it a identifiable” that distinguish persons who who can recover from those those person impact i.e., an due to cannot; has also suffered negligence. App majority does Or at 348. defendant’s 78 injuries question proposition due to not that emotional witnessing person injury are caused to third compensable; “bright it rule seeks a line” to determine precluded recovery. may is from who recover and who recovery opinion gives principled allowing for no other reason impact majority zone of under the rule. The criticizes the relationship danger asserting rule, “[t]here is no between that physical danger being subject being in the and zone from the event.” 78 Or emotional traumatization App at criticism the arbitrariness of 348.1That reveals acknowledge, danger rule, I rule the zone of majority but the adopts very subject to the Under is same criticism.2 impact impact possible rule it for who an is one receives recovery physical injury for and to decline to sue his own seek solely witnessing injury for emotional harm due to another. necessary impact logical causal, is Under the rule there or no relationship injury between the and the for which necessarily majority so. in fact be á 1 This assertion of the is not There support person put danger rational basis to the view that a who is also injury unique psychological symptoms is from a source suffers when another injured by Psychiatrists phenomenon the or killed source. label this the same by syndrome” symptoms guilt and of the suffered “survivor and list self-hate as some persons escape Berger, by See who a “near miss” or death which others suffer. Treatment,” Syndrome: Nosology A 31 Am J “The Survivor Problem Volkem, Changes Psychotherapy (1977); “Symptom 238 Formation Character Examples Cyprus,” Psychotherapy Upheavals Due 33 Am J of War: Niederland, Syndrome,” citing 49 Int’l “Clinical Observations of the Survivor (1968). parties, Psycho-Analysis Although argument J this was not asserted any periodicals, legal “survivor nor I seen it other or the have discussed case syndrome” may justify applying danger rejecting test and both the the zone of and the broader rules. narrower respect justify majority’s danger rule in this does not 2 The criticism of the zone rejection rule, compensated he Dillon not because under which nearly hit, actually simply to the third but because he witnessed any party. majority’s belies the assertion that “the Dillon test [does differ] That significant way danger purposes from the rule of this case.” 78 zone of at 347. are in sought. disagree persons I who the zone precluded but sustain no should be for an emotional is the same as that recovering happen impact simply suffered those who to receive a bright the sake of line. early rule was the result of the law’s impact

The genuine injury. mental conditions as a recognize reluctance to requirement impact thought guarantee The of an was 1890, injury genuine. an emotional Since * * * great majority repudiated of courts have “[T]he requirement ‘impact,’ regarding require- as sufficient the by physical ment that the mental distress be certified some * *” injury, objective physical illness or other manifestation.* Keaton, (5th 1984). Prosser and Torts 364 ed impact bystander recovery repudiated rule for has been in 72, Legg, 728, Rptr 2d 69 Cal most states since Dillon v. 68 Cal (1968), Pearson, “Liability to 441 P2d 912 was decided. Bystanders Negligently for Inflicted Emotional Harm —A Arbitrary Rules,” Fla L Comment on the Nature of 34 U Rev (1982) 477, four states which still retained the (noting 488 1982). danger rule in The zone of rule is asserted to be impact rule, 219, 228-29, v. 61 majority Sanperi, see Bovsun NY2d (1984), 357, 473 NYS2d 461 NE2d 843 and the Dillon rule is Bell, certainly trend in the nation. “The Bell emerging Psychic Full 36 Recovery Injury,” Tolls: Toward Tort U (1984). Fla L Rev 339 n 33 Zone of is also the (Second) Torts, 436 position adopted the Restatement § (1965),3 requires physical symptoms which that there of the be (1965), (Second) provides: §

3 Restatement Torts 436 “(1) violating designed negligent If the is as of care actor’s conduct protect fright which the another from a or other emotional disturbance actor harm, bodily recognize involving should an risk of the fact that as unreasonable solely operation fright through the harm results the internal of the or other protect liability. emotional disturbance does not the actor from “(2) negligent creating If unreasonable risk of the actor’s conduct as an shock, bodily by subjecting fright, causing harm another otherwise than him to disturbance, the fact that such harm or other similar and immediate emotional solely operation fright disturbance results from the internal or other emotional protect liability. does not the actor from “(3) (2) bodily applies in where the harm to The rule stated Subsection peril fright to a member of his results from his shock or at harm or other family presence.” occurring in his immediate proof adequate be with injury. Our concern should emotional require- and not with an outmoded of serious emotional injury asserted. is unrelated to the ment of an rule is not adoption is clear to me that It many majority cites Oregon precedents. possible, given has Court allowed cases which the physical injury. an antecedent emotional distress without also notes that the court majority Or at 344. The Intercommunity Hosp., 293 Presbyterian Norwest v. stated that the fact that 652 P2d 318 deny See solely psychic damages. or is no reason to Allen, (1978) 731, 736, 282 Or 580 P2d also Melton accompanying for mental without (“damages disturbance there are consequences” allowable where “special magnitude”). circumstances of considerable None supports proposition majority the cases cited are when damages for emotional distress recoverable impact; fact, clearly point there has been an cases irrespective recovered proposition damages may that such has not been any impact. Oregon of The Court when compensation to allow for emotional distress reluctant only by symptoms, pled it as were in accompanied physical is Allen, supra. case. See Melton v. this requires to think that Norwest majority appears The by only physical compensate The Restatement rule would harm caused emotional plead they physical symptoms. in did suffered disturbance. Plaintiffs this case for this rule is stated in comment rationale f: exception general this rule that there cannot be “The reason for the disturbance, peril recovery consequences, arising its from the for emotional or defendant, endangered by negligence, has his third lies in the fact that the harm, bodily safety plaintiffs him with so that the own and threatened the duty plaintiff original for his of an to the exercise care defendant is protection. breach violated, liability is the defendant is not relieved of When such results, by bodily plaintiff of the unusual harm the in fact reason for the (See 435.)” brought about. § unforeseeable manner which it perceive injury: plaintiff the in which the did Illustration 3 describes a situation insecurely top parked hill. of a Because of “A leaves a truck at C, child, negligence hill. B and her are in the street the truck starts down the this B, B, swerves, path who safety, misses C. truck. The truck strikes in the C, coming, watching her and is not alarmed for own does not see the truck sight injury to resulting C. serious illness at the suffers severe shock and but subject her illness.” to B for shock and A is reaches, asserting result it the injuries in this case are “consequential” and “indirect.” 78 Or at I 348. strongly disagree. injuries present suffered case are distinguishable injury from the claimed in Norwest in several First, respects. consequence there the loss of consortium was a primary injury mother and occurred after that injury. that, immediate The court said as a matter of policy, such are not recoverable in In Oregon. this case, the injuries were siblings’ immediate and contempo- raneous with the injury fatal Ou Fou and were caused witnessing injuries his death. The in this case are direct results of defendants’ negligence.

Second, type claimed in this case is sufficiently persuasive prece different that Norwest is not a dent. The in Norwest sued for the loss of consortium parent. of his recovery Plaintiffs in this case seek for their emotional and trauma type which is distinct injury. The children probably here would be precluded suing Norwest from the loss of consortium of their brother if he injured,4 had been their but emotional direct, the fatal separate and, accident is a I would conclude, legally cognizable type of damage.

Third, injuries correctly even if the in this case are “consequential,” they characterized as “indirect” and are still Norwest, precluded consequential under which held that injuries compensable are if a legal the “loss has source foreseeability.” princi besides its 293 Or at 569. That ple recently reiterated in Broadcasting Anderson v. Fisher Co., 452, 458-59, (1986): 300 Or 712 P2d 803

“Generally, Oregon decisions have not allowed such, stranger’s feelings to a as unless the infliction psychic object distress was the of defendant’s conduct or legal duty apart causing the conduct violated some * * duty relationship distress* of the defendant to In the of some other absence plaintiff, it does not suffice for tort liability that defendant’s offensive conduct is an intentional (Emphasis supplied.) act.” legal independent legal duty

That source of 30.020(2) (d) provides spouse, parents 4 ORS that the decedent’s children and society companionship wrongful the of recover for loss and which is due to a death.

353 duty a of case, defendants breached because in this present of the zone within to who were plaintiffs care is the That negligence. by harm created defendants’ (Second) 436 Torts § in Restatement principle recognized (1965), 3, supra. nSee emotional distress dispute that majority

The does not compensable be injury to another should due to an on circum turns the dispute The in certain circumstances. The should be recoverable. compensation which stances in owed the defendant case is “whether question in a tort initial respect type the with to any duty plaintiff whatsoever * * *." Dewey v. A. F. Klaveness plaintiff the harm suffered (O’Connell, (1963) J., Co., 515, 541, Or 379 P2d 560 & 233 law, to question is a be resolved specially concurring). That Considering the cases in policy. court as a matter of the allowance of approved has the Supreme which the Court distress,5 I that the serious solely for emotional think a observing sibling a injuries sustained as result of this case. I under the facts compensable killed should be conclude, plaintiffs all were policy, a matter of that would as Stride, (1974), plaintiff example, P2d the in v. Or 525 166 5 For Fredeen 269 “put sleep.” injured dog to The had left her with the defendant veterinarian dispose dog, nurse it back to but instead let two assistants defendant did plaintiff ultimately dog the was and it home. The learned that alive health and find living family neighborhood, thought in her and she suffered mental that it was with recognize anguish contemplating possibility dog her children would that the attempt Supreme held the veterinarian’s each The Court other and to reunite. support “converting” dog sufficiently aggravated in was award of conduct $4,000 “sufficiently aggravated anguish inter violation of societal for mental and a punitive damages. justify $700 269 Or at 373-75. ests” to an award of as (1972), N.W., Telephone Or P2d 1193 v. Co. 262 495 In Macca Gen. plaintiffs telephone telephone company erroneously number in a listed the defendant plaintiff Pages number sued advertisement as the after-hours florist. Yellow resulting answering phone at calls all inflicted emotional distress $1,000. night Supreme held the defendant’s Court hours of the and recovered enjoy property plaintiffs right her without act in invasion “resulted nuisance, private for which the interference” and thus constituted unreasonable resulting plaintiff damages for distress from the entitled to recover mental negligent act. 262 Or at 418. defendant’s Helikson, recently, McEvoy P2d More negligence misdelivering for his held that the defendant was liable Court plaintiffs passports child former wife remove the which allowed contrary custody provision country, The court held that of a divorce decree. this passports plaintiff he owed to the to deliver the defendant breached the anguish way specified for his and mental that the could recover suffering. duty here, owed a they because were in an area where defen- dants’ posed conduct a substantial risk them of physical to harm.

The New York Appeals recently Court of defended its v. Sanperi, adherence to the Bovsun danger zone of rule in supra, alia, because, inter it does a duty, not create new but simply enlarges the scope damages. recoverable 61 NY2d at 233.1 understand that conclusion to be on the following based reasoning. defendant, A general principles, under tort law duty owes a any person due care to physical injury to whom reasonably is foreseeable if the defendant is If the negligent. defendant acts negligently, duty. he breaches that If the person is physically injured, he may recover to compensate for his physical injuries. emotional Under the impact theory, a person in the same position who sustains an injury but impact precluded avoids the is from recovery, although duty as to him the same is breached. The danger remedy zone of enlarges recovery rule to allow damages for person serious emotional distress caused when a within the danger zone of witnesses an to a third person. The rule allows people all who are in substantially same position respect with a to tortfeasor to recover for suffering same kind of harm regard without to the irrele requirement vant of an impact. above,

As stated question the initial for determining tort duty is existence of a owed the defendant plaintiff. impact The flaw in the rule is it makes an duty. rule, after the fact determination of Under the a duty defendant owes from protect emotional distress persons defendant, by negligence, those whom the his also danger recognizes duty hits. The zone of test that whether protect exists to harm should be determined any injury duty occurs. A defendant care all owes before persons who are imperiled Again, his conduct. this is the 3, supra. rationale of the Restatement. See n Because people owe other who people physical are in the foreseeable zone of harm, danger duty protect physical them from I think it is appropriate protect people to extend the those negli- serious emotional harm which due gent they personal to someone with have a close whom relationship. this Given sort of emotional compensable, compelling there is no reason to make depend totally on fortuitous and irrelevant consideration that the defendant did or did not make contact with plaintiff. adoption I believe that rule is both Oregon precedents inconsistent with and unwarranted in view rejection. of its near-universal modern The choice is thus between the zone and the Dillon rules. We would need to decide this case which of these two rules is supported by policies, weighty the more because have stated claims under I either rule. would hold that granted, stated claims for can which relief Accordingly, would remand for trial. I dissent. join

Buttler, Newman, Rossman and JJ. in this dissent.

Case Details

Case Name: Saechao v. Matsakoun

Court Name: Court of Appeals of Oregon

Date Published: Jul 1, 1986

Citation: 717 P.2d 165

Docket Number: A8406-03428; CA A34147

Court Abbreviation: Or. Ct. App.