Gain v. Carroll Mill Company , 114 Wash. 2d 254 ( 1990 )

Dore, J.

— The trial court dismissed a claim of negligent infliction of emotional distress caused by the negligent bodily injury of a family member. We hold the claim was properly dismissed, as the plaintiffs were not physically present at the scene of the accident.

Facts

This case arose out of an incident on March 2, 1987, when James S. Gain, a trooper for the Washington State Patrol, was killed by a truck owned by respondent Carroll Mill Company, Inc. On the same evening of the accident, during the 11 o'clock news, the appellants, the father and brother of the decedent, allegedly saw film relating to the fatal accident and were able to confirm that James was the victim when they saw his vehicle and identified the license plate number.

Appellants subsequently filed a complaint against respondents alleging ”[a]s a result of the death of James S. Gain and the violent and public nature of his death ..." they are entitled to relief for the negligent infliction of emotional distress which was "proximately caused by the negligence of [respondents]." Respondents moved to dismiss, under CR 12(b)(6), on the grounds that appellants were not present at the accident scene, and that they were not placed in physical peril. The respondents' motion incorporated the following stipulation of facts:

1. Plaintiffs are family members of James S. Gain.

2. On or about March 2, 1987, James S. Gain was killed on or near Interstate 5 in an accident allegedly caused by negligence of Defendants.

3. At the time of the accident, Plaintiffs were not present at the place where James S. Gain was killed.

4. Plaintiffs were not placed in physical peril by the alleged negligent actions of Defendants.

Clerk's Papers, at 7-14. The trial judge granted summary judgment.¹ The trial court dismissed appellants' claim based on a rule established in Cunningham v. Lockard, 48 Wn. App. 38, 736 P.2d 305 (1987), to the effect that no action can lie for mental distress caused by negligent bodily injury of a family member, unless the claimant was present at the time of the accident.

The dissent claims the stipulated facts do not support a cause of action. However, the stipulated facts were not the only facts before the trial court, but were supplemental to the facts in the pleadings and the defendants' trial memorandum.

The dissent tries to ignore the facts in the pleadings by stating the plaintiffs are precluded from relying on their pleadings. This is not true. The stipulated facts were signed by the attorneys, and not the parties to the suit. These stipulated facts were not made on personal knowledge. Only when a summary judgment motion is supported and made on personal knowledge is the adverse party precluded from relying on his pleadings. See CR 56(e).

Furthermore, the moving party, the defendants, supported their summary judgment motion with the "pleadings on file with the court, the attached Memorandum of Law and the Stipulation of Facts." Clerk's Papers, at 6. Defendants' Motion to Dismiss. Plaintiffs' emotional distress was admitted as a fact in the pleadings, conceded to in defendants' trial memorandum and accepted by the Judge. The Judge agreed with the defendants that even though plaintiffs suffered emotional distress, they do not have a cause of action because they were not present at the time of the accident. To reach this decision, the Judge had to accept the facts in the pleadings as true because there is no allegation of emotional distress in the facts designated as "stipulated facts". In addition, the briefs and oral argument were predicated on the facts in the pleadings being part of the stipulated facts. This is manifested by the Judge's memorandum opinion in which he concludes:

The summary judgment shall be granted. The father and brother claims for emotional distress under the stipulated facts indicates that they were not present at the time of the accident.

Clerk's Papers, at 21. This is undisputed evidence that the trial Judge considered the facts in the pleadings as part of the stipulated facts.

The stipulated facts were in addition to the facts in the pleadings and the facts agreed to in defendants' trial memorandum.

Analysis

The tort of negligent infliction of emotional distress was recognized in Washington in Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976). In Hunsley, the plaintiff sought damages for mental distress she suffered when a car crashed into her house while she was sitting in the living room and her husband was in an adjacent room. We reexamined the then general rule of no liability for mental distress where the defendant's actions were negligent and there was no impact to the plaintiff. We decided, instead of adopting arbitrary rules, to test plaintiff's negligence claim against the established concepts of duty, breach, proximate cause, and damage. Hunsley, at 434. We held that a defendant had a duty to avoid the negligent infliction of mental distress. Hunsley, at 435. We further held that it was not necessary that there be any physical impact or threat of an immediate physical invasion of plaintiff's personal security. Hunsley, at 435.

The issue presented here is whether a plaintiff need be physically present at the scene of the accident before he has a claim for mental distress caused by the negligent bodily injury of a family member. In other words, does a defendant's duty to avoid the negligent infliction of mental distress extend to plaintiffs not present at the scene of the accident? In Hunsley the plaintiff was present so this issue was not raised. In a case prior to Hunsley, however, we did discuss the issue presented by plaintiffs in this case. In Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), the parents of an allegedly sexually molested child brought an action for damages resulting from the alleged sexual molestations of their child. The parents did not observe the molestations and learned about them at a later date from a third party. We rejected plaintiffs' claim based on the then general rule of no liability for negligent infliction of emotional distress. Nonetheless, in evaluating the parents' claim, we quoted and applied the language of the leading case, Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72, 29 A.L.R.3d 1316 (1968), which had recognized the tort of negligent infliction of mental distress:

In determining . . . whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction.

Schurk, at 656 (quoting Dillon v. Legg, 68 Cal. 2d 728, 740-41, 441 P.2d 912, 69 Cal. Rptr. 72, 29 A.L.R.3d 1316 (1968)). After distinguishing the facts before us with those in Dillon, we concluded that even under the rationale of cases allowing recovery for mental distress, plaintiffs' claim was not viable:

In Dillon the mother was near the scene of the accident. She observed her daughter being injured and did not learn the facts from others.

In the instant case, the mother was not near the scene of the molestations; she did not observe these injuries occurring to her daughter, and learned of the occurrences at a later date from a third person. We do not believe the facts of the instant case even come within the guidelines of Dillon to indicate a degree of foreseeability by the defendant parents, sufficient to predicate recovery by Maria Argo's mother for mental anguish and distress.

Schurk, at 656-57. Based on the facts presented, we held

this is not the case for consideration of a change of this long established rule [of no liability for negligent infliction of mental distress] since it would be of no avail to the plaintiffs.

Schurk, at 657.

The foreseeability analysis suggested by the Dillon court and applied in Schurk is similar to the type of analysis we adopted in Hunsley. Thus while Schurk did not recognize plaintiffs' claim for negligent infliction of mental distress, it is supportive of the position that plaintiffs must be present at the scene of the accident before they can pursue a claim for negligent infliction of mental distress. Schurk also recognizes that an outer limit of liability exists in this tort.

Likewise, Hunsley recognized that the tort of negligent infliction of mental distress is not without limits. Specifically we noted a defendant's liability is limited by the element of foreseeability. Hunsley, at 436.

As noted in Dillon, a defendant is more likely to foresee "that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction." Dillon, 68 Cal. 2d at 741. The mental distress suffered by plaintiffs not present at the scene of the accident is more akin to the anguish that any person feels after being informed of death or injury to a loved one. We agree with the court in Cunningham, that unless a reasonable limit on the scope of defendants' liability is imposed, defendants would be subject to potentially unlimited liability to virtually anyone who suffers mental distress caused by the despair anyone suffers upon hearing of the death or injury of a loved one. As one court stated:

'"It would surely be an unreasonable burden on all human activity if a 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. . . .'"

Budavari v. Barry, 176 Cal. App. 3d 849, 855, 222 Cal. Rptr. 446 (1986) (quoting Scherr v. Hilton Hotels Corp., 168 Cal. App. 3d 908, 214 Cal. Rptr. 393 (1985)).

We conclude that mental suffering by a relative who is not present at the scene of the injury-causing event is unforeseeable as a matter of law. We reach this conclusion after balancing the interest of the injured party to compensation against the view that a negligent act should have some end to its legal consequences.

Other jurisdictions facing the issue raised by this case and which have adopted the foreseeability analysis comport with our holding. These cases require plaintiffs to either witness the injury-causing event or see the victim immediately after the accident. Nancy P. v. D'Amato, 401 Mass. 516, 517 N.E.2d 824 (1988); Croft v. Wicker, 737 P.2d 789 (Alaska 1987); Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986); Gates v. Richardson, 719 P.2d 193 (Wyo. 1986); Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985); Waid v. Ford Motor Co., 125 N.H. 640, 484 A.2d 1152 (1984).

Turning to the facts before us, the record demonstrates that appellants were not present at the scene of the accident, as the plaintiffs concede. There are no facts in the record explaining whether plaintiffs did or did not see the victim of the accident or view the accident scene immediately after the accident. Reply Brief of Appellants, at 6-7. While the appellants, in their brief, suggest that they learned of decedent's death by a live telecast during the evening news, they did not set forth these specific factual allegations in an affidavit as required by CR 56(e). Neither were these facts considered by the trial court nor are they in the record before us. On an appeal from a summary judgment, evidence that is absent from the materials considered by the trial judge cannot be considered on appeal. Margoles v. Hubbart, 111 Wn.2d 195, 199, 760 P.2d 324 (1988).

Based on this record, the trial court correctly dismissed plaintiffs' claim as it was unforeseeable as a matter of law that plaintiffs would suffer mental distress when they were not present at the scene of the accident.

Conclusion

A defendant has a duty to avoid the negligent infliction of emotional distress. However, this duty does not extend to those plaintiffs who have a claim for mental distress caused by the negligent bodily injury of a family member, unless they are physically present at the scene of the accident or arrive shortly thereafter. Mental distress where the plaintiffs are not present at the scene of the accident and/ or arrive shortly thereafter is unforeseeable as a matter of law.

Here, the appellants were not present when their family member was struck by respondent's truck. Therefore, the trial court correctly dismissed the plaintiffs' claim for the negligent infliction of mental distress.

Affirmed.

Callow, C.J., and Dolliver, Durham, and Smith, JJ., concur.

Andersen, J., concurs in the result.

1 WhiIe defendants' motion was styled as a motion to dismiss under CR 12(b)(6), the trial court properly treated it as a motion for summary judgment under CR 56. The record indicates the trial court considered the stipulated facts submitted with defendants' motion. CR 12(b) provides that a CR 12(b)(6) motion shall be treated as one for summary judgment and disposed of as provided in CR 56 if matters outside the pleading are presented and not excluded by the court. St. Yves v. Mid State Bank, 111 Wn.2d 374, 377, 757 P.2d 1384 (1988) (trial court dismissed action under CR (12)(b)(6), not excluding affidavits; on review this court treated it as a summary judgment); 5 C. Wright & A. Miller, Federal Practice § 1366, at 675 (1969).