Johnson v. Ruark Obstetrics & Gynecology Associates, P.A. , 327 N.C. 283 ( 1990 )

Justice MEYER

dissenting.

First, I wish to make clear that this action has nothing whatever to do with the separate lawsuit for the wrongful death of the fetus — that suit is alive and well and proceeding completely separate from this action and may result in substantial sums flowing to these plaintiff-parents. The negligence alleged by the Johnsons in this action refers to acts causing or permitting the death of the fetus and forms the basis for a completely separate action for emotional distress suffered by the parents. The damages alleged by Mr. and Mrs. Johnson were damages that arose after they learned of the death. Specifically, Mr. and Mrs. Johnson alleged:

Past, present and future pain and suffering and emotional distress of enduring the labor, with the knowledge that their unborn child was dead, and the delivery of a dead child.

Past, present and future mental distress and anguish resulting from the dramatic circumstances surrounding the stillbirth of their child.

(Emphasis added.) The Johnsons do not allege that the defendants acted negligently towards them, except insofar as the defendants’ acts created serious emotional distress.

The majority sets out the three tests commonly adopted by other jurisdictions to limit bystander recovery for serious emotional distress. Each of these tests is admittedly somewhat arbitrary, but they are conscientious efforts to avoid what would otherwise become a tort-feasor’s unlimited liability to any bystander suffering foreseeable serious emotional distress. Of these three, the California Dillon factorial approach to foreseeability is the most expansive, but even the court in Dillon sought “to limit the otherwise potentially infinite liability which would follow every negligent act” through adoption of its factorial approach, Dillon v. Legg, 68 Cal. 2d 728, 739, 441 P.2d 912, 919, 69 Cal. Rptr. 72, 79 (1968), and has subsequently adopted even stricter limitations. Today’s majority goes beyond even Dillon's broad approach, for it rejects the limitations on absolute foreseeability that are essential elements of the Dillon rule. Concluding that plaintiff may recover for his or her emotional distress arising due to concern for another person, if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant’s negligence, the Court nonetheless finds it unnecessary and undesirable to attempt to state any rules to be applied as rules of law in determining when a plaintiff’s evidence concerning foreseeability will be sufficient.

The majority declines to discuss in detail the development of the law outside our own borders. Instead, the majority elects to set out its broad rule of recovery without seeking guidance from the experience of other jurisdictions with less expansive doctrines of recovery.¹ Note, Bystander Recovery: A Policy Oriented Approach, 32 N.Y.L. Sch. L. Rev. 877 (1987); Jin Hwang, Emotional Distress Law in Disarray, 1987 Ann. Surv. Am. L. 475, 477-91 (1989). Even those jurisdictions most permissive in allowing recovery place limits on those bystander recoveries which are based exclusively on foreseeability. Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204, 209, 532 P.2d 673, 676 (1975) (requiring plaintiffs to be within a reasonable distance from the scene of the accident); McLoughlin v. O’Brian, 2 All E.R. 298, 304-05 (1982) (per Wilberforce, Lord Justice) (alleged emotional injury must come through sight or hearing of the event or its immediate aftermath; bystander must be proximate in time and space to the accident; relation to the bystander is a factor). California, that jurisdiction with the greatest experience in permitting wide latitude for recovery of serious emotional distress, has found it necessary to strictly construe the Dillon requirements and has in fact begun a retreat from the broad rule set out in Dillon. Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989) (relating difficulties encountered after Dillon; establishing strict requirements of physical presence, contemporaneous awareness that the event is causing injury, and close consanguine or marital relationship to the primary victim); Elden v. Sheldon, 46 Cal. 3d 267, 274-76, 758 P.2d 582, 586-88, 250 Cal. Rptr. 254, 258-60 (1988) (denial of recovery by live-in lover due to: state interest in promoting marriage, potential burden on courts, and need to limit defendant liability); Comment, A New Tort in California: Negligent Infliction of Emotional Distress (For Married Couples Only), 41 Hastings L.J. 447 (1990). The majority fails to heed the difficulties faced by earlier pioneers of this tort.

Under the majority formulation, a defendant has a duty not to cause serious emotional distress in any person who might foreseeably suffer such distress from proximate negligence. This duty is limited only by the foreseeability that such harm may occur. The majority lists several “factors” to be considered on the question of foreseeable harm. Those factors — a plaintiff’s proximity to the negligent act, the relationship between the plaintiff and the other person for whom the plaintiff is concerned, and whether the plaintiff personally observed the negligent act — are indicia that tend to establish foreseeability. Because the majority does not make these factors determinative of the foreseeability of a bystander’s emotional distress, there is no real limitation on foreseeability. But as California has noted, with apologies to Bernard Witkin, “there are clear judicial days on which a court can foresee forever.” Thing v. La Chusa, 48 Cal. 3d at 668, 771 P.2d at 830, 257 Cal. Rptr. at 881.

The majority undertakes no analysis of how negligent acts causing lost viability of the fetus create a duty flowing to the mother, nor is there analysis of how the duty flows to the father, who never alleges any duty existed except to avoid inflicting serious emotional distress. The majority assumes a duty exists because the fetus lost viability and the Johnsons suffered the pain of the loss and the despair of a childless labor. Compare this treatment of duty to that of Tebbutt v. Virostek, 65 N.Y.2d 931, 483 N.E.2d 1142, 493 N.Y.S.2d 1010 (1985) (memorandum), in which the New York court denied recovery for serious emotional distress arising from death of a fetus due to a negligently performed amniocentesis on the basis that there was no duty flowing to the plaintiff-parents from the defendant-physician. See also Vaillancourt v. Medical Ctr. Hosp. of Vt., 139 Vt. 138, 425 A.2d 92 (1980) (denying recovery for emotional distress of parents witnessing negligent act resulting in death of fetus, as parents not within zone of danger; therefore, no duty owed them).

That the foreseeability and proximate cause requirements as set out by the majority are low hurdles indeed is readily apparent. I assume that by distinguishing between fright and serious emotional distress, the majority is drawing a distinction similar to that between a primary response to a traumatic event and a secondary response.² See, e.g., Leong v. Takasaki, 55 Haw. 398, 411-12, 520 P.2d 758, 766-67 (1974). Medicine identifies at least three diagnosable serious secondary responses to traumatic events: anxiety reaction, conversion reaction, and hypochondriasis. Id. at 412, 520 P.2d at 767. The prevalence of these disorders is “common.” Diagnostic and Statistical Manual of Mental Disorders at 235-53, 257-67 (3d rev. ed. 1987). It would appear that serious emotional distress arising from a traumatic event is a statistical likelihood in any bystander exposed to the negligently created traumatic event. Thus, the majority’s entry requirement that the injury be severe (“severe emotional distress” meaning, “for example,” neurosis, psychosis, chronic depression, phobias, and other types “generally recognized by professionals”) is a totally ineffective barrier.

Foresight alone does not provide a socially and judicially acceptable limitation on recovery of damages for negligent infliction of emotional distress. Thing v. La Chusa, 48 Cal. 3d at 668, 771 P.2d at 830, 257 Cal. Rptr. at 881. The majority establishes no limit to foreseeability with its list of factors. The majority makes some reference that the relationship between the bystander and the primary victim (parent, spouse, sibling, grandparent, cousin, etc.) may be of some help in determining foreseeability. However, there is no real limitation to the class of foreseeable plaintiffs on this basis. Even the most liberal jurisdictions have a relationship requirement for the class of persons who can recover for the tort.

Nor does the majority’s analysis address, in the overall context of the tort, any requirement of proximity to the alleged negligent acts. Many courts make this an important consideration in automobile injury or death cases. See, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 669, 771 P.2d 814, 830, 257 Cal. Rptr. 865, 881 (recovery denied to mother who was neither present at scene of accident nor aware that son was being injured); Wright v. City of Los Angeles, 219 Cal. App. 3d ---, ---, 268 Cal. Rptr. 309, 329 (1990) (plaintiffs must be on the scene and “then aware [that decedent] was being injured by [the tort-feasor’s] negligent conduct”); Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204, 209, 532 P.2d 673, 676 (physical proximity to scene of tort is determining factor); Wilder v. City of Keene, 131 N.H. 599, 604, 557 A.2d 636, 639 (1989) (recovery denied to parents who neither saw nor heard collision); Burris v. Grange Mutual Cos., 46 Ohio St. 3d 84, 93, 545 N.E.2d 83, 91 (1989) (recovery denied to parent who had “no sensory perception of the events surrounding the accident”); Gain v. Carroll Mill Co., 114 Wash. 2d 254, ---, 787 P.2d 553, 557 (1990) (plaintiff required to be “present at the scene of the accident and/or arrive shortly thereafter”).

Any considered opinion adopting a strict foreseeability approach without establishing limits on the class of bystander plaintiff, the type of primary injury creating the distress, and the proximity of perception cries out for an exploration of the foreseeable implications.

Does the majority give equal causes of action for the grieving mother and the family friend? Is it just as surely foreseeable that grandparents, siblings, other relatives, and close friends may also suffer demonstrably serious emotional distress? “Cases involving relational interest's pose difficult problems with respect to mental anguish claims .... Under these circumstances the fear of an indefinite liability is a legitimate one, and the need to impose reasonable limits upon the extent of a defendant’s responsibility clearly exists.” Byrd, Recovery for Mental Anguish in North Carolina, 58 N.C.L. Rev. 435, 448 (1980).

Liability without limitation adversely affects three distinct groups: tort-feasors, the physically injured primary and secondary victims, and society as a whole. As described earlier, the universe of plaintiffs contemplated by the majority’s rule is infinite indeed.

It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.

Prosser and Keeton on The Law of Torts § 54, at 366 (5th ed. 1984). “If recovery is to be permitted, . . . it is . . . clear that there must be some limitation.” Id. Though the purpose of tort law is to right wrongs negligently committed, prior to this decision it has not been the policy of this jurisdiction to extend an infinite responsibility to everyone who has suffered. See generally Byrd, Recovery for Mental Anguish in North Carolina, 58 N.C.L. Rev. 435 (1980).

That the law can retard as well as promote social and economic development is very nearly axiomatic. H. deSoto, The Other Path at 177-87 (1989). Virtually all conduct is risk creating. Recognizing this, “the decision must be made concerning the quality of the risks toward plaintiff that the defendant created by his conduct.” Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L. Rev. 1, 8 (1977). Learned Hand proposed his famous cost-benefit equation in an effort to distinguish between risks which were worth taking and those which were not. United States v. Carroll Towing Co., 159 F.2d 169, reh’g denied, 160 F.2d 482 (2d Cir. 1947).³ Today’s decision, drawing no such distinction, stands for the proposition that no risk of serious emotional distress is acceptable. The impact of this rule on the availability of medical care, particularly that of obstetrics, will be to further discourage qualified physicians from practicing. The risk of liability and the escalated premium for insurance to cover the liability are already seriously affecting the delivery of obstetrical care in this state, particularly to the rural areas and to the poor. With the addition of this new layer of liability to bystanders, that problem will be seriously exacerbated. I cannot think that our state will benefit from a rule that discourages such risk-taking activity without regard to the costs society might pay or the benefits society might derive therefrom.

If there be any limitations whatsoever on this duty not to negligently inflict foreseeable serious emotional distress, the nonexclusive list of factors recited by the majority which may be “considered” does not establish them. In adopting a rule, it should not be so vague that it provides no guidance to the judges and juries that must implement it. “When making a decision under a rule that provides little or no guidance, decision makers will inevitably decide upon whatever basis seems important to them.” Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L. Rev. 477, 483 (1982). Professor Pearson’s description of the difficulty of implementing vague rules precisely describes California’s twenty-year struggle with the Dillon rule.

From this analysis of case law from jurisdictions that have introduced a more restrictive version of the foreseeability rule adopted today, I conclude that the majority sets out on an unwise course. Though it adopts foreseeability as its polestar, the majority fails to use that guide in formulating its rule. I must dissent from the overbroad rule adopted today.

An alternative proposal would be to place limitations on the definition of “foreseeability” based upon the relationship of the plaintiff, the proximity of perception, and the severity of the injury that would give rise to a bystander’s cause of action for serious emotional distress. For limitations on foreseeability based on plaintiff’s relationship to the victim, see, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 667-68, 771 P.2d 814, 829-30, 257 Cal. Rptr. 865, 880 (mother of victim is “closely related”); Elden v. Sheldon, 46 Cal. 3d 267, 273, 758 P.2d 582, 587, 250 Cal. Rptr. 254, 258 (unmarried cohabitant denied recovery); Dillon v. Legg, 68 Cal. 2d 728, 741, 441 P.2d 912, 920, 69 Cal. Rptr. 72, 80 (mother of victim is “closely related”); Quesada v. Oak Hill Improvement Co., 213 Cal. App. 3d 596, ---, 261 Cal. Rptr. 769, 778, rev. denied, Nov. 16, 1989 (niece given opportunity to prove sufficiently close relationship). For limitations on foreseeability based on the proximity of perception, see, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 669, 771 P.2d 814, 830, 257 Cal. Rptr. 865, 881 (recovery denied to mother who was neither present at scene of accident nor aware that son was being injured); Wright v. City of Los Angeles, 219 Cal. App. 3d ---, ---, 268 Cal. Rptr. 309, 329 (plaintiffs must be on the scene and “then aware [that decedent] was being injured by [the tortfeasor’s] negligent conduct”); Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204, 209, 532 P.2d 673, 676 (physical proximity to scene of tort is determining factor); Wilder v. City of Keene, 131 N.H. 599, 604, 557 A.2d 636, 639 (recovery denied to parents who neither saw nor heard collision); Burris v. Grange Mutual Cos., 46 Ohio St. 3d 84, 93, 545 N.E.2d 83, 91 (recovery denied to parent who had “no sensory perception of the events surrounding the accident”); Gain v. Carroll Mill Co., 114 Wash. 2d 254, ---, 787 P.2d 553, 557 (plaintiff required to be “present at the scene of the accident and/or arrive shortly thereafter”). For limitations on foreseeability based on the severity of the injury to the bystander, see, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 668, 771 P.2d 814, 829-30, 257 Cal. Rptr. 865, 880-81 (“serious emotional distress” required as a limitation on recovery); Lejeune v. Rayne Branch Hospital, 556 So. 2d 559, 570 (La. 1990) (emotional distress must be both severe and debilitating for recovery). This has been the preferred approach by the Considered opinions of those jurisdictions extending liability to bystanders. See, e.g., Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983); Gates v. Richardson, 719 P.2d 193 (Wyo. 1986); Note, Bystander Recovery: A Policy Oriented Approach, 32 N.Y.L. Sch. L. Rev. 877 (1987).

The New Mexico court has limited claims to those with a “marital, or intimate familial relationship between the victim and the plaintiff, limited to husband and wife, parent and child, grandparent and grandchild, brother and sister and to those persons who occupy a legitimate position in loco parentis.” Ramirez v. Armstrong, 100 N.M. at 541, 673 P.2d at 825. Unfortunately, I have failed to convince my brethren that this Court should do the same.

This Court’s expansion of tort liability for emotional distress raises other troubling questions when one considers the possibility of inconsistent verdicts and double recoveries for the same loss. In the case at hand, should a recovery by the prospective parents be permitted if another jury allows no recovery in the wrongful death action based upon the same acts of negligence? If the pending wrongful death claim of Glenn W. Johnson (plaintiff here, administrator in the companion case) is successful, despite admonitions to the contrary, that jury is likely to factor in a compensation to the plaintiff for his emotional distress in his capacity as father, a major element of plaintiff’s claim in this case. The jury in this negligent infliction of emotional distress case, being unaware of the action of the jury in the other case, will also award damages for the emotional distress suffered by Glenn W. Johnson as the father. These dangers will exist whenever the intentional infliction of emotional distress is tried separate and apart from the wrongful death action. Perhaps consideration should be given to requiring that such claims be tried in the same action. See Crump v. Bd. of Education, 326 N.C. 603, 629-30, 392 S.E.2d 579, 593-94 (1990) (Meyer, J., dissenting).

Finally, I share my brother Webb’s skepticism that the majority indeed reflects “the overwhelming weight of this Court’s opinions for the past one hundred years” in an opinion effectively overruling Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), and Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960); and openly overruling Edwards v. Advo Systems, Inc., 93 N.C. App. 154, 376 S.E.2d 765 (1989); Ledford v. Martin, 87 N.C. App. 88, 359 S.E.2d 505 (1987), disc. rev. denied, 321 N.C. 473, 365 S.E.2d 1 (1988); Campbell v. Pitt County Memorial Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff’d on other grounds, 321 N.C. 260, 362 S.E.2d 273 (1987); Woodell v. Pinehurst Surgical Clinic, P.A., 78 N.C. App. 230, 336 S.E.2d 716 (1985), aff’d per curiam, 316 N.C. 550, 342 S.E.2d 523 (1986); Craven v. Chambers, 56 N.C. App. 151, 287 S.E.2d 905 (1982); Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 268 S.E.2d 855 (1980); and McDowell v. Davis, 33 N.C. App. 529, 235 S.E.2d 896, disc. rev. denied, 293 N.C. 360, 237 S.E.2d 848 (1977). To arrive at this characterization, the majority is forced to conclude that our cases contain unfortunate and erroneous misstatements. The majority says that “some writers” have “miscategorized” the law of North Carolina in this area, though in categorizing the law of other states these same commentators “are likely correct” in their analyses. The majority states further that “our courts” have made “misstatements” of law and that “our courts” have used “inconsistent analyses” and have thereby “buttressed” “misconceptions” as to our law. The majority opinion is exceedingly (and in my view unnecessarily) critical of the care this Court has previously exercised in this area. Besides being inaccurate, these statements do nothing to instill confidence in this Court’s opinions.

The majority has neglected to overrule or otherwise treat other cases containing “unfortunate” language similar to that which it has determined goes against “the overwhelming weight of this Court’s opinions.” In Arthur v. Henry, 157 N.C. 438, 73 S.E. 211 (1911), this Court stated that a plaintiff could recover for emotional distress if the jury found that “she was put in fear and frightened to such an extent that she suffered physical pain" as a result of debris propelled through the house in which she was living by negligent blasting. Id. at 439, 73 S.E. at 212 (emphasis added). The Court noted with approval that the trial judge “was careful to exclude the idea that the plaintiff could recover for fright unaccompanied by physical injury.” Id. In Kirby v. Stores Corp., 210 N.C. 808, 812, 188 S.E. 625, 627 (1936), we stated, “ ‘[a]s a general rule, damages for mere fright are not recoverable; but they may be recovered where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment.’ ” Id. (quoting Candler v. Smith, 50 Ga. App. 667, 673, 179 S.E. 395, 399 (1935)). We made the same statement in 1937 in the case of Sparks v. Products Corp., 212 N.C. 211, 213-14, 193 S.E. 31, 33 (1937). See also Slaughter v. Slaughter, 264 N.C. 732, 735, 142 S.E.2d 683, 686 (1965).

In Crews v. Finance Company, 271 N.C. 684, 689, 157 S.E.2d 381, 385 (1967), we find more of this “unfortunate” language. We held in Crews that “angina and increased blood pressure constituted physical injury” so as to survive the defendant’s motion for involuntary nonsuit and to require the case to be submitted to the jury. Id. at 690, 157 S.E.2d at 386.

The majority mischaracterizes as dicta the holding in Williamson v. Bennett, 251 N.C. at 503, 112 S.E.2d at 52, that “recovery may be had for mental or emotional disturbance in ordinary negligence cases where, coincident in time and place with the occurrence producing the mental stress, some actual physical impact or genuine physical injury also resulted directly from defendant’s negligence.” This Court denied recovery in that case because it was a case of “fright, anxiety and other emotional stress, unaccompanied by actual physical injury.” Id. at 507, 112 S.E.2d at 54 (emphasis added). It is apparent that even if the the majority is correct in stating that “our earlier cases did not require any physical impact or injury,” a point which I do not concede, physical impact or injury became generally accepted as a requirement and was applied as such in those very cases the majority finds necessary to overrule as well as in cases it neglects to mention.

Our cases have consistently denied bystander recovery for the mental anguish of a parent over the negligently caused death or injury of a child. Benevolent Association v. Neal, 194 N.C. 401, 139 S.E. 841 (1927) (injury); Croom v. Murphy, 179 N.C. 393, 102 S.E. 706 (1920) (death); Ballinger v. Rader, 153 N.C. 488, 69 S.E. 497 (1910) (death). This Court has allowed no recovery for mental suffering caused by injury to a spouse by means other than alienation of affections or criminal conversation. Craig v. Lumber Co., 189 N.C. 137, 126 S.E. 312 (1925) (denying wife’s recovery for grief and pain where husband died instantaneously); Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769 (1920) (criminal conversation and alienation of affections); Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913) (criminal conversation). In Ferebee v. R.R., 163 N.C. 351, 79 S.E. 685 (1913), aff'd, 238 U.S. 269, 59 L. Ed. 1303 (1915), this Court denied recovery for mental suffering resulting from concern for plaintiff’s wife and child. Id. at 354-55, 79 S.E. at 686-87.

The majority cites Hipp v. Dupont, 182 N.C. 9, 108 S.E. 318 (1921), for the proposition that our jurisdiction permits bystander recovery for the negligent infliction of serious emotional distress. The majority neglects to mention that the plaintiff in that case alleged physical, as well as mental, injuries arising from the alleged acts of negligence directed at her husband. Id. Hipp stands for no more than the established rule of our jurisdiction that mental injury is actionable where there is a physical manifestation of harm.

This very brief examination of North Carolina law indicates that a rule permitting recovery for all foreseeable serious emotional distress arising from negligence is not a statement of the overwhelming authority of this state. Rather, the rule of this state has been to require physical manifestation of injury or physical impact in order to distinguish claims for fright, which the majority concedes is not actionable. I cannot agree with the majority’s reading of current North Carolina law.

I would think that the more considered approach to the problem raised by the Johnsons’ complaint would be to create a special exception to the general rule denying recovery for emotional distress of a bystander not suffering physical manifestations or a physical impact. This exception would permit recovery for the serious emotional distress suffered by a mother as a result of a stillbirth caused by negligence. Such a special category would be similar to those already established in our case law. For example, we have allowed recovery without regard to any bodily injury for mental distress which results from the negligent transmission of important telegraphic messages. Russ v. Telegraph Co., 222 N.C. 504, 23 S.E.2d 681 (1943) (late delivery of death message); Green v. Telegraph Co., 136 N.C. 489, 49 S.E. 165 (1904) (failure to properly deliver message of arrival); Meadows v. Telegraph Co., 132 N.C. 40, 43 S.E. 512 (1903) (late delivery of sickness message); Young v. Telegraph Co., 107 N.C. 370, 11 S.E. 1044 (1890) (late delivery of sickness message). Additionally, this Court has allowed recovery, absent physical injury, for the negligent handling of a dead relative’s corpse. Morrow v. R.R., 213 N.C. 127, 195 S.E. 383 (1938) (mutilation of dead body); Bonaparte v. Funeral Home, 206 N.C. 652, 175 S.E. 137 (1934) (husband’s body withheld from wife to induce payment for embalming services). In Kirby v. Stores Corp., 210 N.C. 808, 188 S.E. 625, defendant’s bill collector sat in his parked car about fifteen feet away from plaintiff and repeated threats to get the sheriff and have plaintiff arrested if she did not pay her bills. Plaintiff alleged that the trauma of this event caused her to suffer a miscarriage, and this Court affirmed the jury verdict in her favor. A subsequent case affirmed this approach where there was a miscarriage. Martin v. Spencer, 221 N.C. 28, 30, 18 S.E.2d 703, 703 (1942). Such an exception as may be appropriate here has been the preferred approach of a significant number of sister states and commentators. See, e.g., Tebbutt v. Virostek, 65 N.Y.2d at 936, 483 N.E.2d at 1146, 493 N.Y.S.2d at 1014 (Jasen, J., dissenting) (citing numerous cases and authorities); Naccash v. Burger, 223 Va. 406, 416, 290 S.E.2d 825, 831 (1982). Our cases suggest that this is the proper manner in solving the problem posed today.

1 . As of 1987, twenty-one jurisdictions had adopted the Dillon rule or some modification thereof, while fifteen jurisdictions expressly rejected it. Jin Hwang, Emotional Distress Law in Disarray, 1987 Ann. Surv. Am. L. 475, 475 n.4 (1989).

2 . “The primary response, anQ immediate, automatic and instinctive response designed to protect an individual from harm, unpleasantness and stress aroused by witnessing the painful death of a loved one, is exemplified by emotional responses such as fear, anger, grief, and shock.” Leong v. Takasaki, 55 Haw. 398, 411-12, 520 P.2d 758, 766 (1974). A secondary response is a longer lasting reaction “caused by an individual’s continued inability to cope adequately with a traumatic event.” Id. at 412, 520 P.2d at 767.

3 . Hand described the duty of an actor to protect against resulting injuries as being a function of three variables: (1) the probability (P) of injury occurring, (2) the gravity (B) of resulting injury, and (3) the burden (B) of adequate precautions. Hand described this relationship algebraically as an inquiry as to whether B e PL. United States v. Carroll Towing Co., 159 F.2d at 173.