mother who heard a terrible noise and then saw her daughter lying seriously injured in the road, and father who came to the scene of the accident immediately thereafter, were allowed recovery despite fact that they alleged neither that they suffered physical impact nor that they were within the zone of danger
How later courts described this case
- mother who heard a terrible noise and then saw her daughter lying seriously injured in the road, and father who came to the scene of the accident immediately thereafter, were allowed recovery despite fact that they alleged neither that they suffered physical impact nor that they were within the zone of danger
- harm for which plaintiff seeks to recover must be susceptible to some form of objective medical determination and proved through qualified medical witnesses
- where rule allows for more liberal recovery “the adoption of well-defined foreseeability factors will not lead to unlimited liability, and that the threat of remote and unexpected liability is not a substantial fear”
- individual is liable “only to those who are foreseeably endangered [and] only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous” (quotation omitted)
Written by the judges who cited it.
The opinion
GRIMES, J.,
dissenting: I must respectfully dissent in this case. Although financial compensation is made possible for the plaintiffs in this case, a terrible burden is placed on all users of our highways.
The court recognizes that imposing liability on a defendant far beyond his culpability “is a valid concern” but tells us that the fear of unlimited liability should be weighed against the plaintiffs serious emotional injury. It is news to me that liability in tort law should be determined by the seriousness of the injury. I had always thought that liability and damages were separate issues, and that liability beyond culpability should not be imposed no matter how great the injury. The “fantastic realm of infinite liability,” Amaya v. Howe Ice, Fuel & Supply Co., 59 Cal. 2d 295 , 379 P.2d 513 (1963), established by this case will burden all those who use our highways.
Past experience teaches me that this is not the end. This case may be limited to parent and child, but what about the child-parent case, or that of the husband and wife, brother and sister, grandparent and grandchild, the fiancee or close friend? There is just no way a logical distinction can be drawn and liability to these people will be thrust upon us in years to come. Love and affection is not necessarily confined to parenthood or even blood relationship.
Although this case professes to be limited to situations where the parent is near enough to hear the accident and then see the child, how *660 long will it be before the law will be extended to cases where the parent comes to the scene sometime after the accident and from there to the situation where the parent is notified of the accident and sees the child in the hospital? I ask this because once the court enters on this course there is no sensible point at which to stop and the potential liability of highway users will be limitless.
In fact the march down that road has already begun because the father in this case did not hear the accident. What hearing the accident has to do with imposing liability anyway escapes me. When the mother heard the accident she did not know her child was involved; so how could that have affected her “mental tranquility”? How can it be said that the effect on a mother is any different whether she sees the injured child right after the accident or sometime later?
The foreseeability test of the court is elastic. How can it logically be said that it is more foreseeable that a parent will hear an accident and then see the child than it is that the parent will be told of the accident after it happens?
These concerns are not mine alone. They have been expressed many times over the years, but they merit repetition. They were recognized in Jelley v. LaFlame, 108 N.H. 471 , 238 A.2d 728 (1968), which is overruled today despite the fact that only four years ago in Deem v. Newmarket, 115 N.H. 84 , 333 A.2d 446 (1975), a unanimous court reaffirmed the' soundness of its holding. The concerns are not frivolous. In Jelley v. LaFlame, the court called them “weighty and well recognized” and “still persuasive.”
Holding the line with the zone of danger rule was not based on logic but upon policy to prevent imposing an unreasonable burden on highway users' and, because once the step is taken, there is “no sensible or just stopping point Jelley v. LaFlame supra. Nothing has changed to make it just to impose this unreasonable burden on users of our highways. Accidents are often caused, not by reprehensible conduct, but by momentary inadvertence or judgment which after the fact is found to have been faulty. Slight inadvertence under the court’s new rule can cause the dominoes to start falling subjecting the person to suits, not only by the person injured, but by all manner of relatives whose “mental tranquility” is claimed to have been upset.
This case goes beyond most of the cases relied on by the court. In most of the cases, the parent actually saw the accident to the- child. This case itself supplies the proof that the. concern about escalating liability is valid. From Dillon v. Legg, 68 Cal. 2d 728 , 441 P.2d 912 (1968), where the parent saw the accident to the present is but eleven short years. Yet this court has now reached out to give causes of action *661 to those who do not see the accident, but who claim to suffer shock by “sensorially perceiving the accident and immediately viewing the accident victim” and also to those who do not sensorially perceive the accident but are immediately told of it and then view the victim.
However, the genie is now clearly out of the bottle and I can only hope that someone will find a way to get him back in.