Amaya v. Home Ice, Fuel & Supply Co.

PETERS, J.

I dissent.

The majority opinion states the issue to be “whether liability may be predicated on fright or nervous shock (with con *316 sequent bodily illness) induced solely by the plaintiff’s apprehension of negligently caused danger or injury to a third person.” So stated, the answer to such a broad question might well be in the negative. But the issue now before us is not the one quoted above. The real issue is a much more limited one. The plaintiff is not just anyone. She is a mother of a 17-month-old infant child. The defendant, in the presence of the mother, negligently ran down and injured that infant child. As a proximate result the mother has suffered permanent injuries. Thus the real question is not the one stated by the majority, but is whether or not a mother may recover damages for physical injuries resulting from emotional shock caused by fear for her infant child who is negligently run down by the automobile of the defendant in the presence of the mother. I submit that the answer to that question, so limited, should be that liability for such injuries should exist.

The italicized words above create real limitations that are not merely matters of form. Common sense tells us that a defendant who negligently injures someone, should not be liable to every oversensitive person, whoever he or she may be, who is shocked by an accident, whether it happens in his or her presence or not, and happens to any person, whomsoever he or she may be, and whether plaintiff is related to or even known to the injured person or not. The line of legal causation cannot be stretched so thin. But the fact that, morally and legally, there should not be liability in any such general situation is no reason for holding that, morally and legally, there should not be liability in the limited situation. Now common sense tells us, and elementary principles of fairness command us, to impose liability against a negligent defendant who negligently injures an infant child in the presence of its mother, and the mother suffers serious emotional shock as a result. Admittedly, if we once create liability in the limited situation here involved, demands will inevitably be made upon us to extend the limits of the rule. Admittedly, it will be a difficult but not impossible task to draw the line between liability and nonliability in such situations. When we are called upon to draw that line the place we draw it may not, perhaps, be entirely logical. By necessity it will have to be arbitrary. It will be less arbitrary, however, than to deny liability entirely. But the fact that such a task may be difficult should not deter us from performing it. One of the main functions of appellate courts is to draw just such lines. *317 We are constantly doing so. The law grows, develops, expands or is limited by a case by case consideration of particular facts, and not by deciding broad general principles not involved in the case under consideration. All that we are required to decide in the instant case, and it is submitted all we should decide, is whether a mother, who as a result of seeing her infant child run down by defendant’s truck, suffers severe shock may recover. Whether anyone else, in a different relationship, can recover, should be left for future eases.

It must be conceded, as the majority opinion correctly points out, that the great weight of case authority denies liability even in the limited situation here involved. This is partly due to the sheer inertia caused by the doctrine of stare decisis, and the apparent reluctance of appellate courts to disturb the status quo. It is also in no small part due to the fear, expressed in many of the cases that have adopted the majority rule, that it will be difficult if not impossible to draw the line between liability and nonliability in such cases. ’ This point has already been discussed. So far as the doctrine of stare decisis is concerned, it is, of course, a sound doctrine, but it is not immutable. Old cases, no matter how numerous,'* should not stand, if, under modern and different conditions, they cannot withstand the impact of critical analysis. The doctrine of stare decisis should never be used as a substitute for such critical analysis. If an old rule cannot withstand such analysis it should be overruled. This court has not hesitated to do so in other situations. It should not hesitate here,_ It seems obvious to me that anyone who objectively analyzes the problem will inevitably come to the conclusion that it is reasonably probable that a mother who observes her child being run over by a negligently operated truck will inevitably be shocked, and it is also reasonably probable that the effects, of such shock may inflict serious and permanent injuries. To use the language of the cases, such result is “reasonably probable” and “reasonably foreseeable.” The negligence of defendant is, obviously, the direct “proximate cause” of the accident. The resulting injuries should therefore be compensable. In such a situation the fundamental maxim that; “for every wrong there is a remedy” contained in sec-* tion 3523 of the Civil Code (referred to by the majority as a mere “aphorism”) takes on real legal and important significance. The mandate of section 1714 of the Civil Code that: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want *318 of ordinary care or skill in the management of his property or person,” then becomes applicable.

It should be pointed out that the California law is not as clearly established as the majority opinion implies. The majority opinion does state that this court has not yet passed on the question, and that it has, on three occasions, expressly refused to pass on the issue. (Easton v. United Trade School Contr. Co., 173 Cal. 199, 202 [ 159 P. 597 , L.R.A. 1916A 394 ] ; Lindley v. Knowlton, 179 Cal. 298, 301 [ 176 P. 440 ] ; Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 184 [ 4 P.2d 532 , 77 A.L.R. 675 ].) The majority opinion places its main reliance in establishing the California law on two appellate court opinions, Clough v. Steen, 3 Cal.App.2d 392 [ 39 P.2d 889 ], and Reed v. Moore, 156 Cal.App.2d 43 [ 319 P.2d 80 ].

No petition for hearing was filed in the Clough case. It was a decision that was probably wrong under existing California law. There a mother was injured and her child killed in an accident. In her action, as part of her damages, the mother recovered for her personal injuries and for shock and its results from seeing her child killed before her eyes. The appellate court reversed the plaintiff’s verdict, holding that this last-mentioned item was not recoverable. Whatever may be the rule as to recovery for shock when the mother is not injured or not in the zone of danger, there is substantial authority to the effect that, if the mother is injured or in the zone of danger, damages caused by shock in seeing her child injured or killed may be included in the award. That is certainly the law in this state. (Easton v. United Trade School Contr. Co., supra, 173 Cal. 199 ; see also eases collected and commented on in Prosser on Torts (2d ed. 1955) p. 181.)

The main case relied upon by the majority as establishing “existing law” in California is Reed v. Moore, supra, 156 Cal.App.2d 43 . That ease presents a factual situation very close 1 to the instant one, and undoubtedly held that no liability existed under such facts. In reaching this result the appellate court quoted the rule of nonliability as set forth in the legal encyclopedias and placed great reliance on Clough v. Steen, supra, 3 Cal.App.2d 392 , a case, as already pointed out, that was probably wrong. It is worthy of note that upon petition for hearing to this court in the Reed case the petition *319 was denied by a four to three vote. While it may be true that a denial of a hearing, as stated in the majority opinion, gives some added weight to the appellate court opinion, a denial by a four to three vote indicates that on the day of that vote (February 5, 1958) three justices of this court had serious doubts about the correctness of the appellate court opinion. This, coupled with the express reservation by this court in the three cases mentioned above, makes the Reed case a pretty weak “reed” upon which to rely as “establishing” California law.

There are other matters of principle to which reference should be made. The early law was to the effect that shock was not a recoverable item of damage. That rule had the advantage, at least, of being clear, easily understood and easy to apply. Then many states, including California, started to limit that rule by holding that shock accompanied by impact was a proper element of damage (see cases cited in majority opinion). The rule was further limited by the rule, now the law of California, that recovery for shock may properly be an item of damage even without impact if the plaintiff is in the “zone of danger” (also see eases cited in the majority opinion). Then the rule was further limited, if not abolished, by the several California cases holding that a plaintiff could recover for shock caused by the infliction of an intentional tort on a third person member of the family, even though the plaintiff was not in the “zone of danger.” (These cases are collected and cited in the majority opinion.)

These gradual modifications of the original rule are of great significance. They at least suggest, if they do not compel, the conclusion that we have now reached the stage of development of the law that we should at long last take the intelligent and logical step forward of holding that a mother who sees her child run down by a negligent defendant, and who, as a proximate result thereof, suffers serious and permanent in- J juries should recover whether or not she was in the “zone of danger.” The “zone of danger” test is illogical and unsound and should be abandoned.

It seems to me that when this court adopted the rule that in the case of an intentional tort committed against a member of the family, the plaintiff can recover for shock resulting in serious injuries whether she was in the “zone of danger” or not it necessarily undermined the rule that no such recovery should be allowed in the case of negligent torts. Just a few months ago this court expressly held that “insofar as inter- *320 spousal liability for tort is concerned there is no logical or legal reason for drawing a distinction between” intentional and negligent torts (Klein v. Klein, 58 Cal.2d 692, 693 [ 26 Cal.Rptr. 102 , 376 P.2d 70 ]). That was a five to two decision in which the author of the majority opinion in the instant case dissented, mainly on the ground that there was a real and legal distinction between the two. The majority opinion in the instant case, by necessary implication, overrules the Klein case in this respect.

The intentional tort cases are important for another reason. The line between liability and nonliability in the intentional tort cases, that is who may sue for shock because they saw injuries to whom, is precisely the same as it is in the negligent tort cases. It is no more difficult to draw that line in the negligent tort cases than it is in the intentional tort cases. Yet the difficulty of drawing that line in the intentional tort cases did not deter this court from imposing liability, and adopting the modern, intelligent, logical, and humane rule of liability in this field. It should not be a deterrent in this, a negligent tort case.

It would serve no useful purpose to further analyze the problem here involved. This was ably and intelligently done by the District Court of Appeal, First Appellate District, Division One, when this case was before it for consideration. The unanimous opinion of that court, written by Justice Tobriner, then a member of that court, adequately discusses and disposes of the problem. I therefore adopt, as part of my dissent, the following portions 2 of the opinion of the District Court of Appeal appearing in (Cal.App.) 23 Cal.Rptr. 131 :

“We probe here the single question whether a mother may recover damages for physical injuries resulting from emotionalshock caused by fear for the safety of her infant child. While the cases are divided upon the issue, we cannot rule that the negligent driver owes no ‘duty’ to the injured mother and thus avoids liability. As we shall point out, we cannot hold as á matter of law that the risk of such injury is not foreseeable in the context of present-day conditions. < <

“Whatever natural and human impulse there may be to allow recovery to a plaintiff mother in this situation, the decisions reflect neither magnanimity nor uniformity in grant *321 ing relief. We certainly agree with Prosser’s statement: ‘It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury. All ordinary human feelings are in favor of her action against the negligent defendant. ’ (Prosser, Law of Torts (2d ed. 1955) p. 181.) To understand the reluctance of some courts to give effect to that feeling we must glance backwards briefly to certain aspects of the development of the law of torts.

“In the early stages of that unfolding, the courts, following an approach that is the very antithesis of the reasoning which denied recovery in our ease, 1 fastened a strict liability upon the actor who caused the damage. In the decisions, which set the rules of conduct for the enclosed feudal society, the actor bore responsibility for the damage he caused without regard to whether he was at fault or whether he owed a ‘duty’ to the injured person. Indeed, the defendant owed a duty to all the world to conduct himself without causing injury to his fellows. It may be that the physical contraction of the feudal society imposed an imperative for maximum procurable safety, and a corresponding absolute responsibility upon its members.

“The Industrial Revolution, which cracked the solidity of the feudal society and opened up wide and new areas of expansion, changed the legal concepts. Just as the new competitiveness in the economic sphere figuratively broke out of the walls of the feudal community, so it broke through the rule of strict liability. In the place of strict liability it introduced the theory that an action for negligence would lie only if the defendant breached a duty which he owed to plaintiff. As Lord Esher said in Le Lievre v. Gould [1893] 1 Q.B. 491, 497: ‘A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. ’ The evolution of this concept of ‘duty’ proved to be a tortuous one, a course which has been marked by courts that have disagreed and decisions that have been vague. Indeed, Prosser has written that ‘ “duty’’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is *322 entitled to protection.’ (P. 167.) Whatever its content, however, the concept of duty lies deeply rooted in the cases, I and our task requires us to determine if we can properly say (respondents owe one to appellant here.

“The classic definition of duty has been in terms of foreseeability, but the definition itself is wide and general, and its application here becomes even more difficult because of the incursion of two other factors: the so-called ‘unforeseeable’ plaintiff and the infliction upon such plaintiff of emotional distress. As to the definition, one statement of it occurs in the famous ease of Donoghue v. Stevenson [1932] A.C. 562, 580: ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'

“But our question is the more difficult because we must determine if appellant is a person who is ‘closely and directly affected’ by the act of the driver of the truck that he should have reasonably had her in contemplation when he directed his mind to performing the act. Respondents would contend here that the mother of the injured child, should, instead, be characterized as an ‘unforeseeable’ victim of the driver’s negligence and outside the zone of any apparent danger. She would fall within the exclusion of Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [ 162 N.E. 99 , 59 A.L.R. 1253 ], a leading case in which the court denied liability against a railroad, whose agent, assisting a passenger to board a train, dislodged a package of fireworks which exploded, causing some scales, many feet away, to fall upon plaintiff. The court held that defendant owed no duty to this ‘unforeseeable’ plaintiff. Indeed, our case compounds the Palsgraf difficulty because the injury to plaintiff consisted of emotional distress, a type of harm which the courts have been reluctant to recognize. 2

*323 “We believe, however, that the proper approach is to recognize, and grant, recovery for an injury caused to one who suffers emotional distress. We think, too, that such injury is foreseeable if a defendant’s conduct encompasses potential • risk of harm to a class of persons which includes the plaintiff. Harper and James point out that this foreseeable risk may be of two types. The first class involves actual physical impact. ‘In other cases, however, plaintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant’s conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses (where these things are foreseeable).’ (2 Harper & James, The Law of Torts, pp. 1035-1036; footnotes omitted.)

“Prosser states the following rule: ‘In negligence cases, duty is an obligation, recognized by the law, to conform to a particular standard of conduct toward another. The plaintiff must be within the class of persons to whom the duty is ' owed, and no action may be founded upon a duty only to others.’ (P. 166.)

“The point in controversy crystallizes into the issue as to who falls within the class of persons to whom respondents * owed a duty. Several dangers were present when the driver negligently operated respondent ice company’s truck in the vicinity of the mother and her child. There was the danger that certain persons, including the child, and possibly the mother, although she did not fear for her own safety, might, be struck by the truck. There was the danger that property might be destroyed. There was the danger that certain persons might suffer physical harm as a result of fright for their own safety or for the safety of others. The foreseeability of* each of these dangers constitutes a question of fact which, within the limits we set forth infra, should be resolved by the trier of fact and not by a mechanical rule which, insensitive *324 to individual situations, serves merely to establish an artificial and abstract simplicity.

“We cannot rule that, as a matter of law, the injury to appellant was not foreseeable. The only justification for holding that appellant cannot state a cause of action would be, not that the injury to her, due to emotional distress, was not foreseeable, as a matter of law, but rather that the courts must deny recovery for reasons of policy; that, otherwise, factual questions will arise which are too difficult for courts or juries to decide. 3

“Thus, the basic precept that ‘It is fundamental to our common-law system that one may seek redress for every substantial wrong’ (Battalla v. State (1961) 10 N.Y.2d 237 [ 176 N.E.2d 729, 730 ]) becomes blocked out in many cases by legalistic abstractions. Depicting the situation in obscure eolorization various courts declare themselves unable to give relief because of the absence of such requirements as (1) physical impact, (2) presence of the plaintiff in the zone of physical impact, (3) physical manifestations of emotional distress, or (4) plaintiff’s fear for his oivn safety. Finally, (5) some courts hold that recovery would encourage a flood of fraudulent claims which, they say, they cannot successfully segregate from deserving ones. While at the base of these contentions they may be no more than an underlying reluctance to permit recovery in a new area of injury, the considerations should be examined on the merits.

“Thus no immutable rule calls for physical impact to justify recovery for emotional distress. 4 The courts have long *325 held that the occupant of land who suffers a trespass or nuisance may recover for emotional distress caused by fear for the safety of a member of his family. In Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328 [ 5 Cal.Rptr. 686 , 353 P.2d 294 ], the Supreme Court of California said, ‘regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.’ (P. 337.) Granted that the rule expressed here derives from the earlier sensitivity of the law to the rights of the property holder, no reason forbids a similar modern recognition of the individual’s interest in the protection of his emotional stability. 5

“The second asserted requirement, that the plaintiff must be present within the zone of physical impact, finds expression in the well known case of Waube v. Warrington (1935) *326 216 Wis. 603 [ 258 N.W. 497 ], 6 although, as we shall point out, the basic premise of the ease is not free from criticism. In the Wisconsin ease Mrs. Waube, watching from the safety of her own home, saw defendant operate her husband’s automobile so negligently that she struck and killed Mrs. Waube’s child. Denying recovery for the consequent emotional shock which caused Mrs. Waube’s death, the court said: ‘Fundamentally, defendant’s duty was to use ordinary care to avoid physical injury to those who would be put in physical peril, as that term is commonly understood, by conduct on his part falling short of that standard. It is one thing to say that as to those who are put in peril of physical impact, impact is immaterial, if physical injury is caused by shock arising from the peril. ... It is quite another thing to say that those who are out of the field of physical danger through impact shall have a legally protected right to be free from emotional distress occasioned by the peril of others, when that distress results in physical impairment. ’ *327 (Pp. 500-501 [258 N.W.].) As the Wisconsin court itself intimates, 7 and as we have said supra, the test of foreseeability would lead to the opposite result; the court reaches its conclusion upon the basis of the ‘social interests’ it envisages and ‘fairness and justice.’ (P. 501 [258 N.W.].) The application of these concepts strangely excludes the injury of the plaintiff and the unfairness and injustice to plaintiff of a denial of recovery. In any event, what is the significance of Mrs. Waube’s presence in the danger zone if we eliminate the premise that she must entertain fear for herself?

“Moreover, the famous English ease of Hambrook v. Stokes Brothers [1925] 1 K.B. 141 comes to the opposite conclusion. In Hambrook the defendants’ servant left a truck parked at the top of a steep street with the engine running and without taking proper precautions to prevent it from moving. The truck started down the hill by itself and finally ran into the side of a house. The deceased, a pregnant woman, while walking with her children to school, saw the oncoming truck. Although, according to the court, she suffered no personal exposure to danger, she feared for the safety of her children, who had gone around a corner and were out of sight. After being informed that a little girl had been injured she discovered that the victim was her own child. Shocked by the sight of the child in the hospital, the decedent suffered a hemorrhage; ultimately both she and her unborn child died.

“The court allowed recovery to her husband even though the deceased mother neither saw the accident, feared for her own safety, nor encountered any personal danger. The court said: ‘It would result in a state of the law in which a mother, shocked by fright for herself, would recover, while a mother shocked by her child being killed before her eyes, could not, and in which a mother traversing the highway with a child in her arms could recover if shocked by fright *328 for herself, while if she could be cross-examined into an admission that the fright was really for her child, she could not. In my opinion such distinctions would be discreditable to any system of jurisprudence in which they formed a part.’ (P. 157.) 8 This case is compelling authority in the instant case, directly opposed in result, although nearly identical factually, to Waube .

“Turning to the third alleged requirement, we note that although some cases in other states hold that emotional distress, even if followed by physical injury, cannot serve as a basis for recovery in such a situation as the instant one, 9 neither reason nor decision in California support such a conclusion. Thus in Easton v. United Trade School Con. Co. (1916) 173 Cal. 199, 203 [ 159 P. 597 , L.RA. 1916A 394], the court declared: ‘In no one of these cases, nor in any other well-adjudicated case—and certainly not by the courts of this state—is it held that where fright accompanies or follows a wrongful physical injury, that it is not an element of damage. To the contrary, fright under such circumstances is but one form of mental anguish, and the mental anguish as a direct reasonable outcome of the illegal physical injuries is always an element of damage.’ Since the complaint in the instant case alleges that the emotional distress caused physi *329 cal injury it falls within the Easton holding and disposes of this third possible basis for the rejection of appellant’s claim.

“The fourth potential ground of rejection, that plaintiff must fear for his own safety rather than for that of another, finds expression in Reed v. Moore (1957) 156 Cal.App.2d 43 [ 319 P.2d 80 ] and similar decisions; 10 yet some of the eases cited in Reed , some subsequent California cases, as we shall point out, and some eases of other states, 11 do not adopt certain of its premises. In Reed a pregnant woman witnessed an accident precipitated by defendant’s negligence, involving an automobile occupied by plaintiff’s husband. As a result plaintiff suffered emotional strain, mental shock and fright resulting in actual physical injury and a miscarriage. The court affirmed the judgment sustaining defendant’s demurrer without leave to amend.

“Reed relies upon Easton, a case which, we have noted, holds that a plaintiff may recover for physical injury which follows emotional distress. Reed likewise rests upon Kelly v. Fretz (1937) 19 Cal.App.2d 356 [ 65 P.2d 914 ], which recognized that the authorities were in conflict upon whether or not a mother should recover for emotional shock produced by the fear of the safety of her child. In that ease defendants' negligence resulted in the death of plaintiff’s mother-in-law and the injury of her child. Plaintiff herself was not struck or frightened by the car’s approach and had no *330 knowledge of it. Whether the verdict rested upon plaintiff’s distress caused by injuries to these others, or upon the element of fright produced by fear for the safety of her child or for her own safety, did not clearly appear. The court said: ‘Manifestly the verdict could not rest upon grief caused by the injuries to others. [Citations.] If it rested upon the element of fright produced by fear for the safety of her child, the authorities differ on the right of recovery. (Lindley v. Knowlton, 179 Cal. 298, 302 [ 176 P. 440 ].) If it rested on fear for her own safety, her evidence fails to support the verdict.’ (P. 362; emphasis added.)

“As the quoted portion of the opinion discloses, the Kelly case relied upon Lindley , a decision in which the court, although not required to decide the issue, recognized that excellent authority supported recovery for fright produced by the ‘apprehended danger’ of another. (P. 299.) In Lindley , a 165-pound chimpanzee had entered plaintiff’s house and attacked her children, whom she rescued from it. She may have feared for herself as well as her children but her children were exposed to the greater danger; when she intervened the chimpanzee was ‘choking one of them severely; . . .’ (P. 299.)

“A consideration of California cases subsequent to Heed brings us to the fifth and last deterrent upon which courts have relied for refusal of relief in the present type of case. Courts have said that ‘to allow recovery in the absence of physical injury will open the door to unfounded claims and a flood of litigation. . . .’ (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [ 240 P.2d 282 ].) Yet the Supreme Court in Siliznoff , in the absence of physical manifestations, gave relief for emotional distress which followed threats of physical violence. While in that case plaintiff intentionally, rather than negligently, caused the emotional upset, the court recognized that mental distress could foreseeably lead to bodily harm. Thus the cause of action need not be ‘founded on a right to be free from intentional interference with mental tranquillity, but on the right to be free from negligent interference with physical well-being.’ (P. 336.)

“The court in Siliznoff , moreover, did not shy away from affording recovery for the bare emotional distress because it might be simulated, but held that the jurors ‘ [f]rom their own experience’ (p. 338) were competent to judge the effect of different acts upon the emotions. Indeed, in an age when *331 the teachings of psychiatry have made clear the effect of emotional disturbance, it would be incongruous to hold that we must not allow recovery for such injury because it is hard to measure or because it may be simulated. 12

“The various bases for refusal of relief which we have discussed do not actually touch upon the central issue as to whether respondents owed appellant a duty of due care because of the foreseeability of the emotional trauma suffered by appellant. When one is negligent in the operation of a car he should, as a reasonable man, foresee that the class of persons who may suffer harm from his misconduct includes the parent whose emotional distress issues from the exposure of his child to injury by reason of the negligence. The above grounds for refusal of relief are in substance no more than court-inspired theories to restrict the range of liability of a defendant to narrow areas; they do not relate to the key question.

“We are sympathetic with courts which do not believe that redress should be afforded for the flutter of every heart at the sight of an accident. But the need for delineating the area of liability does not justify the obliteration of the liability. We think Prosser has suggested reasonable boundary lines; the instant case falls within them. As Prosser states: ‘It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe shock to the plaintiff, and that the shock must result in actual physical harm. The action might well be confined to members of the immediate family, or perhaps to husband, wife, parent or child, to’ the exclusion of bystanders, and remote relatives. As ah additional safeguard, it has been said that the plaintiff must be present at the time of the accident, or at least that the shock must be fairly contemporaneous with it, rather than follow at a later date. Admittedly such restrictions are quite arbitrary, but they *332 may be necessary in order not to “leave the liability of a negligent defendant open to undue extension by the verdict of sympathetic juries, who under our system must define and apply any general rule to the facts of the case before them.” Within some such limits, it is still possible that a rule imposing liability may ultimately be adopted. ’ (P. 182; footnotes omitted.)

“Within those limits the trier of the fact in the instant case may find that the emotional distress suffered by appellant was foreseeable to respondents.

“It is not consonant with the reactions, or the mores, of the society of today to hold that the mother who suffers emotional distress upon the sight of her child’s injury should not recover if the trier of fact finds such injury was reasonably foreseeable. The knowledge of potential emotional trauma to a parent who witnesses an injury to a child is too clear to the negligent driver to permit an escape upon the ground of unforeseeability. In this time of death and danger on the highway, it would be anachronistic to grant immunity to the negligent driver for such foreseeable emotional disturbance upon the basis of legal abstractions that do not relate to the issue of the case.”

I would reverse the judgment.

Gibson, C. J., and Peek, J., concurred.

Appellant’s petition for a rehearing by the Supreme Court was denied April 9, 1963. White, J., * participated in place of Tobriner, J., who deemed himself disqualified. Gibson, C. J., Peters, J., and Peek, J., were of the opinion that the petition should be granted.

It should be noted that in the Seed case a wife was claiming damages for shock caused by seeing her husband injured, and not an infant child. Whether "this creates a ground for distinction should be left for future cases. •

The only part of that opinion omitted is the statement of facts, which adequately appears in the majority opinion herein and need not be repeated.

“ Pound, The Spirit of the Common Law, pp. 27-31; 119-120; Wigmore, Responsibility for Tortious Acts: Its History (1894) 7 Harv. L. Rev. 315 , 383, 441; Ames, Law and Morals (1908) 22 Harv. L. Rev. 97 ; 3 Holdsworth, History of English Law (3d ed. 1923) pp. 375-377; 8 Holdsworth, History of English Law (3d ed. 1923) pp. 446-459.”

“The general reluctance to grant relief for emotional distress is demonstrated in cases cited in Prosser, Law of Torts (2d ed. 1955) p. 38; Magruder, Mental Disturbance in Torts, 49 Harv. L. Rev. 1033 , *323 1035; N. Y. Law Rev. Comm. Report (1936), Recommendation of the Law Revision Commission to the Legislature, Relating to Liability for Injuries Resulting from. Fright or Shock, pp. 379, 410-422.”

“As the Reporter of Tentative Draft No. 5 of § 313 of the Restatement of the Law of Torts 2d points out: ‘Most of the decisions denying recovery have said that there is no duty to the plaintiff on the Palsgraf theory, because no harm to the plaintiff was reasonably to be foreseen. This sounds unreasonable; if a small child is run down in the street, it is not at all unlikely that the mother may be somewhere in the vicinity, and suffer severe mental disturbance resulting in bodily harm. The basis of the decisions appears rather to be a distrust of the injury itself, together with the difficulty of drawing a line which will rule out remote relatives, those who discover the harm five seconds or an hour after it occurs, and the like.’ (Pp. 9, 10-11.) ”

“The following eases dispense with the impact requirement in actions for negligent infliction of emotional distress: Battalla v. State (1961) 10 N.Y.2d 237 [ 176 N.E.2d 729, 730 ]; Padgett v. Colonial Wholesale Distributing Co. (1958) 232 S.C. 593 [ 103 S.E.2d 265 ], citing Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668 [ 44 P. 320 ]; Colla v. Mandella (1957) 1 Wis.2d 594 [ 85 N.W.2d 345 ]; Belt v. St. Louis-San Francisco Ry. Co. (10th Cir. 1952) 195 F.2d 241 , citing Emden v. Vitz (1948) 88 Cal.App.2d 313 [ 198 P.2d 696 ] and Taylor v. Pole (1940) 16 Cal.2d 668 [ 107 P.2d 614]; Mahnke v. Moore (1951) 197 Md. 61 [ 77 A.2d 923 ]; *325 Cote v. Litawa (1950) 96 N.H. 174 [ 71 A.2d 792 , 18 A.L.R.2d 216 ] ; Rasmussen v. Benson (1937) 133 Neb. 449 [ 275 N.W. 674 ]; Frazee v. Western Dairy Products (1935) 182 Wash. 578 [ 47 P.2d 1037 ] ; Cashin v. Northern Pac. Ry. Co. (1934) 96 Mont. 92 [ 28 P.2d 862 ]; Bowles v. May (1932) 159 Va. 419 [ 166 S.E. 550 ]; Alabama Fuel Iron Co. v. Baladoni (1916) 15 Ala.App. 316 [ 73 So. 205 ]; Salmi v. Columbia & N. R.R. Co. (1915) 75 Ore. 200 [ 146 P. 819 ]; Kimberly v. Howland (1906) 143 N.C. 398 [ 55 S.E. 778 ]; Purcell v. St. Paul City Ry. Co. (1892) 48 Minn. 134 [ 50 N.W. 1034 ]. According to the writer of Intentional Infliction of Mental Suffering-. A New Tort vn Illinois, 11 De Paul L. Rev. 151 (Autumn-Winter 1961), reprinted in Insurance Counsel Journal (1962) vol. 29, pp. 459, 461-462: ‘This rule, requiring impact in cases of negligence is followed by Illinois and by thirteen other states. However, it has been rejected in several states and abandoned by many others that had previously adopted it; so that today the majority rule is that where there is a definite physical injury produced by extreme emotional distress negligently caused, the defendant is liable notwithstanding the absence of any physical impact.’ (Footnotes omitted.) ”

‘‘Courts have likewise granted recovery for emotional disturbance in other situations in which the claimant has not suffered physical impact: Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668 [ 44 P. 320 ] (recovery for emotional suffering of female passenger wrongfully expelled from railroad car); Emden v. Vitz (1948) 88 Cal.App.2d 313, 318 [ 198 P.2d 696 ] (wrongful eviction from apartment followed by emotional disturbance) ; Tate v. Canonica (1960) 180 Cal.App.2d 898 [ 5 Cal.Rptr. 28 ] (conduct intended to cause emotional distress followed by suicide); 72 A.L.R. 1198 , 1203 (negligent transmission of telegram) ; 80 A.L.R. 298 , 304; 12 A.L.R. 342 (mental anguish on account of mutilation of corpse). Becovery for emotional disturbance resulting from abuse of a dead body is hardly consistent with denial of recovery for emotional distress of a mother who witnesses a child’s injury or loss of life. Is the contemplation of injury to the corpse more disturbing than that of the injury which may cost a child its life?”

“The ease is discussed in Magruder, Mental and Emotional Disturbance in the Law of Torts (1936) 49 Harv. L. Rev. 1033 , 1040. The underlying problem has given the draftsmen of the Restatement of the Law of Torts 2d considerable trouble. Thus the original Restatement provision, § 313, Restatement of the Law of Torts (1934) provides as follows: ‘If the actor unintentionally causes emotional distress to another, he is liable to the other for illness or bodily harm of which the distress is a legal cause if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Caveat: The Institute expresses no opinion as to whether an actor whose conduct is negligent as involving an unreasonable risk of causing bodily harm to a child or spouse is liable for an illness or other bodily harm caused to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent’s or spouse’s illness or other bodily harm.’ (Pp. 850-851.) In Tentative Draft No. 5, the Reporter, Professor Prosser, proposes deleting the caveat and substituting: ‘ (2) The rule stated in subsection (1) has no application to illness or bodily harm of another, caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other. ’ (P. 9.) The import of this change is altered, however, upon reading the reasons advanced by the Reporter: ‘Note to Institute: The Caveat is stricken, and Subsection (2) is substituted, because of the overwhelming weight of the case law. The Advisers are unanimous in wishing to retain the Caveat, for its possible effect upon the courts— although it must be conceded that it has thus far had no effect. The Reporter is in sympathy with this position, and feels that there should be liability to a mother who suffers a heart attack when she sees her child killed before her eyes. He is compelled, however, to recognize that the decisions are otherwise. The Council are agreed that the Caveat should go out, and the definite rule of nonliability should be stated. ’ (P. 9.) ’ ’

“Thus the Wisconsin court states: 'The answer to this question cannot he reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the defendant ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain how far defendant’s duty and plaintiff’s right may justly and expediently be extended. ’ (Waube v. Warrington (1935) 216 Wis. 603 [ 258 N.W. 497, 501 ].) Cf. Resavage v. Davies (1952) 199 Md. 479 [ 86 A.2d 879 ], limiting, and in part, rejecting the earlier Maryland ease of Bowman v. Williams (1933) 164 Md. 397 [ 165 A. 182 ], and citing Waube ; but see the dissenting opinion of Judge Markell in Zesavage.”

“The court, in King v. Phillips [1953] 1 Q.B. 429, dismissed an appeal from a ruling against a plaintiff mother for recovery for shock when the plaintiff mother heard her infant son scream as a taxi driver backed into the boy on a tricycle. The boy was ‘slightly hurt’ and ‘the tricycle was damaged.’ (P. 430.) Apparently the appellate court refused to set aside as a matter of law the trial court’s finding that the injury to plaintiff was not foreseeable. Singleton, L.J., stated that Hambrook was not overruled by the later case of Bourhill v. Young [1943] A.C. 92, and considered the instant case from the standpoint of foreseeability of the ‘ “risk of injury (including injury by shock although no direct impact occurred) . . .’’ ’ (P. 433.) Denning, L. J., favored following Hambrook to the extent that it extended a duty not only to the injured child, but also to the parent, but considered the injury in the instant case as unforeseeable and distinguishable from the situation existing in Hambrook. Hodson, L.J., considered that Hambrook was not overruled by Bourhill solely because the defendant in Hambrook admitted negligence. ’ ’

“Cases denying recovery for emotional distress even though followed by physical manifestations: Mitchell v. Rochester Ry. Co. (1896) 151 N.Y. 107 [ 45 N.E. 354 ], overruled in Battalla v. State (1961) 10 N.Y.2d 237 [ 176 N.E.2d 729, 730 ]; cases collected in N.Y. Law Rev. Comm. Report (1936) pp. 410-422. Contra: Cases collected in N.Y. L. Rev. Comm. Report (1936) p. 406, et seq.; Lindley v. Knowlton (1918) 179 Cal. 298 [ 176 P. 440 ]; Vargas v. Ruggiero (1961) 197 Cal.App.2d 709 [ 17 Cal.Rptr. 568 ]; see e.g., Bowman v. Williams (1933) 164 Md. 397 [ 165 A. 182 ]; Mitnick v. Whalen Bros., Inc. (1932) 115 Conn. 650 [ 163 A. 414 ] (plaintiff must fear for own safety).’’

“Other cases to the same effect: Nuckles v. Tennessee Electric Power Co. (1927) 155 Tenn. 611 [ 299 S.W. 775 ]; Carey v. Pure Distributing Corp. (1939) 133 Tex. 31 [ 124 S.W.2d 847 ]; see eases collected in 18 A.L.R.2d 220 , 230-234; eases collected in N.Y. Law Rev. Comm. (1936) 451-452, fn. 265.”

“The court in Bowman v. Williams (1933) 164 Md. 397 [ 165 A. 182 ], refused to distinguish between fright for one’s own safety and for the safety of the members of his family. In a situation in which defendant’s truck, out of control, crashed into plaintiff’s house, endangering plaintiff as well as his family, the court said: ‘ [T]he effect of fright being unpredictable, there is neither logic nor reason to hold, with some of the cases, that a distinction is to be taken so that, if a party suffer an injury, as loss of health, of mind, or of life, through fear of safety for self, a recovery may be had for the negligent act of another; but may not recover under similar circumstances, if the fear be of safety for another.’ (P. 183.) In a later ease (Resavage v. Davies (1952) 199 Md. 479 [ 86 A.2d 879 ]), the court in a three to two decision, held that a mother who suffered nervous shock and resulting physical injuries when, from her front porch, she saw her two daughters struck and killed, could not recover for her injuries. A ruling similar in substance to Bowman is Alabama Fuel & Iron Co. v. Baladoni (1916) 15 Ala.App. 316 [ 73 So. 205 ], See also Penick v. Mirro (1960) 189 F.Supp. 947 .”

“As the court states in Emden v. Vitz (1948) 88 Cal.App.2d 3 ] 3 [ 198 P.2d 696 ] : Appellants ’ contention that the rule permitting the maintenance of the action would he impractical to administer and would flood the courts with litigation is but an argument that the courts are incapable of performing their appointed tasks, a premise which has frequently been rejected. ’ (P. 319.) The New York Court of Appeals has recently pointed out: ‘ In any event, it seems that fraudulent accidents and injuries are just as easily feigned in the slight-impact eases and other exceptions wherein Now York permits a recovery, as in the no-impact eases which it has heretofore shunned. ’ (BattalLa v. State (1961) 10 N.Y.2d 237 [ 176 N.E.2d 729, 731 ]; footnotes omitted.) See Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260 -277.”

Retired Justice of the Supreme Court sitting pro tempore under assignment by the Chairman of the Judicial Council.