TOMS v. McCONNELTOMS v. McCONNEL
This case comes to us from a summary judgment entered in favor of the defendants on the ground that plaintiffs had failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Thus for the purpose of this appeal, all well-pled factual allegations set forth in plaintiffs’ complaint will be acсepted as true.
Martin v Fowler,
The facts gleaned from the plaintiffs’ complaint may be briefly summarized as follows: At the close of the school day on April 22, 1968, plaintiffs’ nine-year-old daughter boarded a school bus for her return trip home. A short time later the bus arrived across the street from the child’s residencе. As the two alternating red lights on the bus weré signalling, it was stopped and discharging children, the youngster in question alighted from the vehicle, walked in front of it, and started to cross the street. At this point defendant Me
Plaintiffs brought suit against the operator of the school bus (defendant Strank), her employer (defendant school district), and the driver of the panel truck (defendant McConnell). The deceased child’s mother sought damages based upon the aforementioned mental anguish generated by witnessing her daughter’s accidental death. The deceased child’s father sought damages for the resultant loss of his wife’s services, companionship, consortium, and her attendant hospital and mеdical expenses.
Thereafter all of the defendants moved for a summary judgment pursuant to GCR 1963, 117.2(1) on the ground that plaintiffs had failed to state a claim upon which relief could be granted. The trial court concurred and granted the defendants’ motion opining that "recovery could not be had for distress of mind caused by witnessing another’s suffering”. The question of governmental immunity, although apparent from the facts of the case, was not raised by the parties. Therefore, the issue is not properly before this Court and will be neither discussed nor decided.
Under the facts of the instant case, the solе and narrow question for determination is whether without sustaining any physical impact, a parent
The other jurisdictions which have considered the quеstion posed by the instant case are split. For example, on facts essentially indistinguishable from those in the case at hand the Vermont Supreme Court although noting it had abolished the "no impact, no recovery rule” in mental suffering cases (as has Michigan,
Likewise where a mother saw her six-year-old daughter crushed to death by a truck as the child was exiting a school bus, the New Hampshire Supreme Court denied the mother any damages for the mental shock and anguish incurred by witnessing the event. The Court reasoned that it could fix no limits for liability which were not wholly arbitrary.
Jelley v LaFlame,
108 NH 471;
On the other hand, the California Supreme Court after diligently reviewing the arguments traditionally employed to deny bystander recovery for mental suffering found such arguments wanting and allowed a mother to recover damages for mental shock and anguish produced by seeing her infant daughter struck and killed by an automobile as the child was crossing a highway.
Dillon v Legg,
68 Cal 2d 728; 69 Cal Rptr 72;
In the case at bar, defendants rely on
Hyatt v
The plaintiff in Hyatt was denied any recovery for mental distress brought about by his wife’s untimely death three days after an operation was allegedly negligently performed by the defendant physician. Similarly in Ellsworth plaintiff’s claim for loss of his wife’s services due to her mental shock resulting from mob action near their home was disallowed. In denying plaintiff’s claim the Court concluded: "None of the unlawful acts complained of [mob action practiced upon the plaintiff husband] were directed towards her [the wife] or committed in her presence”.
Although both Hyatt and Ellsworth precluded a third party from recouping damages for mental anguish suffered as a result of tortious injuries inflicted upon a close family member, they do not stand for the principle that there can be no recovery for mental anguish generated by witnessing the negligent infliction of tortious injuries upon an immediate family member, since in neither Hyatt nor Ellsworth were the tortious acts witnessed by the party suffering the mental anguish. Therefore inasmuch as these two cases did not reach the question presented by the instant case, namely whether without suffering any physical impact a party can recover for mental anguish resulting from witnessing the negligent infliction of injuries upon an immediate family member, they are materially distinguishable from and not controlling on this issue. Consequently the question, in this state at least, is an open one.
The plaintiffs herein assert that the abolition of
I. Zone of Danger Requirement:
As previously recounted, defendants assert that the deceased child’s mother cannot recover damages for emotional distress because she watched the entire accident unfold from the confines of the family dwelling and consequently was not in fear of her own safety. In other words she was not in any so-called "zone of danger”. See 29 ALR3d 1337, Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury. This argument proves too much.
Prior to 1970 it was well settled in this jurisdiction that there could be no recovery for mental suffering unless it was accompanied by some physical impact.
Manie v Matson Oldsmobile-Cadillac Co,
"where a definite and objective physical injury is produced as a result of emotional distress prоximately caused by defendant’s negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.”
Inasmuch as this jurisdiction has nullified the impact prerequisite for recovery of damages in mental suffering cases, any requirement that a plaintiff must be in a "zone of danger” to recover must perforce fall since the zone-of-danger concept presupposes that a plaintiff will be close enough to the tortious activity to fear a physical impact. Thus the zone-of-danger rule is based upon a fact now deemed irrelevant. Furthermore, the hopeless artificiality and harshness of the zone-of-danger. rule was amply demonstrated by
Dillon v Legg, supra.
In that case as a mother and her two daughters were walking along the edge of a highway, one of the children attempted to cross the roadway and was struck and killed by an auto. The mother and surviving child subsequently brought an action for mental distress caused by
"The case thus illustrates the fallacy of the rule [zone-of-danger rule] that would deny recovery in the one situation and grant it in the other. In the first place we can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child’s death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident.”
We hold, therefore, that a plaintiff need not have been within a "zone of danger” as a condition precedent to maintaining an action for mental suffering generated by witnessing the negligent infliction of a tortious injury upon an immediate family member.
II. Arbitrariness of a Rule Permitting Plaintiffs to Maintain an Action for Mental Suffering:
Next thе defendants argue that any rule allowing the plaintiffs to maintain an action for mental suffering would be wholly arbitrary. This contention requires only a brief comment.
Where the interests of justice require, the courts of this state have never been timorous in promulgating rules, albeit arbitrary, to meet the situation рresented. See for example
Aldrich v Scribner,
154
III. Infinite Liability Imposed by any Rule Allowing Plaintiffs to Maintain an Action for Mental Suffering:
It is the defendants’ position that any rule permitting the plaintiffs to maintain their suit for mental suffering would, as a matter of policy, be unwise in that there would be no logical or just stopping point and thus would impose infinite liability upon prospective defendants. This was the same reason used to deny recovery in Hyatt v Adams, supra.
We note at the outset that devising one hard and fast rule for limiting bystander recovery in mental suffering cases would be difficult and complex if not impossible. However, we need not and indeed should not attempt to pose and solve a myriad of hypothetical faсtual situations relative to cases of this nature which may or may not arise in the future. The problem of limiting liability will be best surmounted and will be more justly resolved for all concerned by treating each case on its own individual facts. The facts of the instant case, therefore, limit us to a consideration of whether a parent upon witnessing the negligent infliction of injuries upon its child and suffering mental anguish as a result may maintain an action to recover for emotional distress.,
IV. Foreseeability:
Defendants argue that it is not reasonably foreseeable that a negligent injury inflicted upon a child will be witnessed by the parent and result in mental anguish to the parent.
"[W]hen a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer seriоus shock.” Prosser on Torts (3d ed), p 353.
V. Proliferation of Suits and Fraudulent Claims:
Next, defendants assert that to permit the instant plaintiffs to maintain an action for mental suffering under the circumstances of this case would result in a great proliferation of suits and fraudulent claims. This is but another version of "opening the flood gates of litigation” argument, and it is without merit.
Our jurisdiction permits the recovery of damages for mental anguish. Daley v LaCroix, supra. There is no reason to assume or expect that there will be more of an upsurge in the number of claims whether legitimate or fraudulent in one area of mental suffering than in another.
VI. The Requirement of a Deñnite Physical Injury:
Without admitting that the plaintiffs are entitled to relief, defendants assert that in any event the deceased child’s mother did not suffer the requisite definite and objective physical injury required by Daley v LaCroix, supra, as a condition precedent to recovery. We disagree.
While it is true that
Daley, supra,
at p 12, requires a "definite and objective physical injury” to be manifested before recovery can be had, the scope and meaning of that phrase is delineated by
VII. Conclusion:
In view of the foregoing, we are convinced that taken as a whole, the arguments advanced by the defendants are neither compelling nor persuasive. In short there is no basis either in law or logic upon which to deny the plaintiffs the opportunity to have their day in court to adjudicate their claim on its merits.
We hold, therefore, that a parent may maintain a cause of action for mental anguish resulting in a definite and objective physical injury generated by witnessing the negligent infliction of injuries upon its child. Accordingly, the Eaton County Circuit Court erred by dismissing the plaintiffs’ suit.
Reversed and remanded for proceedings consistent with this opinion.