Grotts v. Zahner , 115 Nev. 339 ( 1999 )

OPINION

By the Court,

Maupin, J.:

Appellant, Kellie Grotts (“Grotts”), and her flaneé were involved in an accident with respondent Gertrude Zahner (“Zahner”). Grotts commenced her action below against Zahner seeking “bystander” emotional distress damages in connection with fatal injuries sustained by her flaneé in the accident. The district court dismissed her claim of bystander emotional distress on the ground that she was not, as a matter of law, “closely related” to her flaneé for these purposes. Grotts appeals.

A bystander who witnesses an accident may recover for emotional distress in certain limited situations. See State v. Eaton, 101 Nev. 705, 716, 710 P.2d 1370, 1377-78 (1985) (citing Dillon v. Legg, 441 P.2d 912, 916 (Cal. 1968)). To recover, the witness-plaintiff must prove that he or she (1) was located near the scene; (2) was emotionally injured by the contemporaneous sensory observance of the accident; and (3) was closely related to the victim. Eaton, 101 Nev. at 716, 710 P.2d at 1377-78.

In State, Department of Transportation v. Hill, 114 Nev. 810, 816, 963 P.2d 480, 483 (1998), a plurality of this court determined that “whether a plaintiff can recover [damages] for NIED [negligent infliction of emotional distress] after witnessing injury to another based on the plaintiffs relationship to the victim is generally a question of fact.” Acknowledging that obvious cases will exist where the issue of “closeness” can be determined as a matter of law, the plurality concluded that the fact finder in most cases should be left with the task of assessing the nature and quality of the claimant’s relationship to the victim for these purposes.

We now conclude, contrary to the plurality holding in Hill, that standing issues concerning “closeness of relationship” between a victim and a bystander should, as a general proposition,' be determined based upon family membership, either by blood or marriage. Immediate family members of the victim qualify for standing to bring NIED claims as a matter of law. See Hill, 114 Nev. at 820, 963 P.2d at 485 (Maupin, J., concurring). When the family relationship between the victim and the bystander is beyond the immediate family,¹ the fact finder should assess the nature and quality of the relationship and, therefrom, determine as a factual matter whether the relationship is close enough to confer standing. This latter category represents the “few close cases” where standing will be determined as an issue of fact, either by a jury or the trial court sitting without a jury.² See id. at 820, 963 P.2d at 485.³ We therefore hold that any non-family “relationship” fails, as a matter of law, to qualify for NIED standing.⁴

In this case, Grotts claims standing to lodge a “bystander” NIED claim because of her affianced relationship to the victim. Because she was not a member of his “family” by blood or marriage, we hold that she does not enjoy the type of “close relationship” required under Eaton.⁵

For the above reasons, we affirm the trial court.⁶

Young, Agosti and Becker, JJ., concur.

1 Family relationships beyond the first degree of consanguinity.

2 The actual closeness of the family relationship, whether or not the victim and the bystander are immediate family members, is always an issue of fact with respect to damages. State, Dep’t of Transp. v. Hill, 114 Nev. 810, 820, 963 P.2d 480, 485 (1998).

3 Because the test we have adopted is calculated to foster predictability and fairness in these matters, we conclude that the question of standing of “in-laws” to bring NIED claims must be left to the fact finder rather than determined as a matter of law. In this, I now retreat somewhat from my concurring position in Hill.

4 Our decision today does not in any way undermine our time-honored system of stare decisis. Hill was a plurality opinion that serves as an important signpost in the ongoing debate over the scope of emotional distress remedies. This case resolves, in large part, that debate.

5 The separate concurrence in Hill reflects my reluctance at that time to adopt a rigid rule of standing in these matters. However, the nature of this particular claim makes it apparent that these standing issues should be determined based upon intra-family relationships.

6 In dissent, Chief Justice Rose voices his concern that many close traditional and non-traditional relationships are left out of the Dillon v. Legg equation. He correctly observes that many such relationships are far more close and valued than relationships between “family”- members. However, the majority of this court is of the opinion that this admittedly limited remedy must be subject to objective but fair standards. Without an objective test for standing to seek this type of legal redress, almost any type of close friendship, traditional or otherwise, might form the basis of a triable claim. Thus, this case has nothing to do with and makes no social comment upon persons living non-traditional lifestyles.

The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this appeal.