Gardner v. Gardner ( 1993 )

Chief Justice EXUM

dissenting.

While agreeing that the majority has identified the appropriate legal principles to resolve this case, I cannot agree with its application of them to the facts here. Because of the close family relationship between the tortfeasor, the child and the plaintiff, I believe a jury might appropriately find that the tortfeasor should reasonably have foreseen that if he negligently killed the child of his marriage to plaintiff, plaintiff would suffer severe emotional distress, even as that term is defined by the majority.

This case is not entirely like Sorrells,¹ decided today, or Ruark,² but it is much closer to Ruark — close enough so that our decision in Ruark should control. Indeed, the foreseeability issue here seems more easily resolved in plaintiff’s favor than it was in Ruark. In Ruark the alleged tortfeasor was a physician whose negligence allegedly caused the death of the fetus of the plaintiff who was his patient. Here the tortfeasor is plaintiff’s husband who, according to the stipulations, negligently caused the death of his and plaintiff’s thirteen-year-old child, in turn causing plaintiff to suffer severe emotional distress. Because of the deceased child’s age, thirteen, the parent-child bonding and the parents’ emotional investment in the child were likely to be quite strong. That the tortfeasor is plaintiff’s husband and was the child’s father and the child was born of his and plaintiff’s marriage further exacerbate the total tragedy.

The majority says, quoting from a Wyoming case, that “part of living involves some unhappy and disagreeable emotions with which we must cope without recovery of damages.” While true as far as it goes, this aphorism should have no application to the psychological and emotional trauma which any mother must surely suffer when her . thirteen-year-old child is killed by the negligence of her husband who is also the child’s father. A more emotionally shattering family tragedy is hard to imagine. That it would likely produce severe emotional distress on the part of the child’s mother when she learns of it, however physically close to the accident scene itself she might have been, seems to me reasonably foreseeable to the father-husband tortfeasor. At least a jury might reasonably find it to be so.

For these reasons, I vote to affirm the decision of the Court of Appeals.

1 . Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 334 N.C. 669, 435 S.E.2d 320 (1993).

2 . Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).