Saechao v. Matsakoun

RICHARDSON, J.

This case presents the questions of first impression of whether and when a person who witnesses the negligently caused injury or death of a member of the immediate family may recover damages for serious emotional distress resulting from witnessing the accident.¹ The trial court dismissed the action as to two of the three plaintiffs² for failure to state a claim. A final judgment was entered against those plaintiffs pursuant to ORCP 67B, and they appeal.

Plaintiff alleged:

“II.

“On or about July 29,1983 two-year old Ou Fou Saechao was riding his tricycle on the sidewalk in the apartment complex known as Halsey Square in Portland, Oregon. His * * * brother, Kae Fou Saechao was immediately adjacent to him. Also on the sidewalk, within fifteen feet and within a ‘zone of danger’ were his * * * brother, Sou Fou Saechao and one of his sisters, Farm Fou Saechao.

“III.

“At approximately 10:20 a.m. on July 29,1983, Defendant Khamchana Matsakoun was learning to park a 1982 Volkswagen Quantum Stationwagon that she owned. Defendant Matsakoun was operating the vehicle pursuant to temporary instruction permit No. 3960626.

“At the same time, Defendant Thon Boupha was instructing Ms. Matsakoun in the operation of the 1982 Quantum Stationwagon. Mr. Boupha was standing on the street or sidewalk, outside of the Quantum Stationwagon.

“IV.

“Defendant Matsakoun backed the Quantum Station-wagon up over a curb, across the sidewalk striking Ou Fou Saechao, and smashing Ou Fou Saechao’s head and body against the brick wall of an apartment building, killing the child instantly.

“V.

“Kae Fou Saechao tried to grab Ou Fou Saechao’s tricycle and pull him out of the way of the oncoming car, but was struck, bruised, contused and physically injured by the car and knocked away from his brother. Kae Fou Saechao, Sou Fou Saechao and Farm Fou Saechao all witnessed the death of their brother and observed the body and scene immediately after the accident.”

The complaint alleges that the three children who witnessed the accident all suffered “extreme emotional trauma, which continues presently and which will continue into the future. The trauma has manifested itself in several ways, including nausea, headaches, physical trauma and nightmares.” The three claims for relief sought damages for defendants’ “negligent infliction of emotional distress.” The first claim, that of Kae Fou Saechao, also sought damages for his physical injuries.

The trial court dismissed the second and third claims, those of Sou Fou and Farm Fou. It denied defendants’ motion to dismiss the first claim, Kae Fou’s, relying, apparently, on the so-called “impact rule,” which provides that only a person who suffers an impact from the same force which injures a third person may recover for emotional distress due to witnessing the injury to the third person. See Prosser and Keeton, Law of Torts 365, § 54 (5th ed 1984). Plaintiffs contend that the “impact rule” is not the law of Oregon and that we should adopt and apply one of several rules which allow recovery in a broader range of cases. We shall discuss each of those theories. Defendants contend that the trial court properly applied the impact rule to dismiss the two claims.

Defendants claim that Fehely v. Senders, 170 Or 457, 135 P2d 283 (1943), holds that, in order for a person to recover for emotional distress, she must have suffered an antecedent physical injury. In that case, the plaintiff was a pregnant woman who was injured in a car accident. The issue was whether the plaintiffs apprehension that her child might be born dead or deformed as a result of an injury to her person was an element of damages. 170 Or at 460. The opinion first states the general rule that, when a person is injured physically, she may also recover for mental distress and anguish which naturally and directly flow from the physical injury. 170 Or at 461. The rest of the opinion deals with what types of consequential mental suffering are properly compensable and concludes that any emotional distress which is not “abnormal or unreasonable” is compensable. 170 Or at 475. Fehely holds only that the plaintiff could recover for mental anguish resulting from her own physical injury, but it does not answer the question here of whether a person must suffer a direct injury before that person can recover damages for emotional distress.

Several Oregon cases have permitted recovery for emotional distress that was not the result of a physical injury. See, e.g., Mooney v. Johnson Cattle, 291 Or 709, 634 P2d 1333 (1981) (intentional interference with a contractual relationship); Turman v. Central Billing Bureau, 279 Or 443, 568 P2d 1382 (1977) (intentional infliction of emotional distress); McEvoy v. Helikson, 277 Or 781, 562 P2d 540 (1977) (negligence in returning passports to mother); Fredeen v. Stride, 269 Or 369, 525 P2d 166 (1974) (conversion of a dog); Macca v. Gen. Telephone Co. of N.W., 262 Or 414, 495 P2d 1193 (1972) (negligent listing in telephone directory, considered to be a nuisance); Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968) (trespass); Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966) (unauthorized disinterment of spouse); Hinish v. Meier & Frank Co., 166 Or 482, 113 P2d 438 (1941) (invasion of privacy). In each of those cases, however, the plaintiff was the direct victim of the tortious conduct, although no physical injury was involved. In Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 652 P2d 318 (1982), the court specifically stated that the fact that an injury is solely emotional or psychic is no reason to deny damages.

The decision as to whether the pleadings can support recovery in this case must be made as a matter of policy. In Meyer v. 4-D Insulation Co., Inc., 60 Or App 70, 652 P2d 852 (1982) , we denied recovery for emotional distress caused by negligent damage to the plaintiffs property. In that opinion we categorized the cases cited above and others in an attempt to distill a principle indicating when damages for emotional distress are appropriate. Noting that the cases do not form a precise pattern, we described four categories in which recovery is allowed: intentional torts, private nuisance, invasion of privacy and miscellaneous cases. 60 Or App at 73-74. We noted a tendency of the Supreme Court to grant recovery by species of case as a matter of policy and that the categories tended to be defined on an ad hoc basis, not on the basis of simple foreseeability. Likewise, in Flowers v. Bank of America, 67 Or App 791, 794, 679 P2d 1385, rev den 297 Or 601 (1984), we examined the defendants’ conduct to determine

<<* * * whether that careless invasion is, as a matter of policy, of sufficient importance to merit protection by an award of damages if the only result is emotional distress. * * *”

The negligence asserted in Flowers was the defendant’s notifying a restaurant that the plaintiffs credit card was cancelled, which caused the restaurant to refuse to honor the card. In both Meyer and Flowers we held that the nature of the defendants’ conduct and the plaintiffs’ emotional upset did not warrant an extension of liability.

Although in Meyer we stated that cases in the “miscellaneous” category appear to recognize liability on an ad hoc basis, there is a common thread to those cases. In each the court determined, as a matter of law, that the defendant owed the plaintiff a duty of care and that the kind of harm which resulted was reasonably foreseeable. Considering the cases in which the Supreme Court has awarded damages solely for emotional distress, we think that serious emotional injuries sustained as a result of observing a sibling killed can be compensable under some circumstances. Under the rationale of Fehely v. Sanders, supra, it seems clear that the trial judge correctly ruled that Kae Fou, who was physically injured, has stated a claim that would allow his recovery of damages for emotional distress. The question is whether Farm Fou and Sou Fou, who suffered no direct injury, have a claim for such damages.

In Norwest v. Presbyterian Intercommunity Hosp., supra, the Supreme Court rejected the plaintiffs claim for loss of “parental consortium” due to the defendants’ negligent incapacitation of the plaintiffs mother. The court treated the claim for loss of society and companionship as one for tortious injury to a family relationship and looked to legislative history to find support for such a cause of action. The court held that legislative policy did not support its creating an “exception from the limits on negligence liability for one person’s loss from injury to another.” 293 Or at 565. The court in Norwest assumed that the plaintiffs injury could well prove to be real, severe and reasonably foreseeable by the defendants; nevertheless, the court ruled:

“* * * The obstacle to plaintiffs action is that ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person’s consequential loss has a legal source besides its foreseeability.” 293 Or at 569.

Although the emotional distress suffered by Sou Fou and Farm Fou here is arguably more proximately related to the event that injured the third person than was the loss of consortium alleged in Norwest, we conclude that similar principles are involved. Like the plaintiff in Norwest, Sou Fou and Farm Fou were persons who “suffered] loss in consequence of [the] injury” to another person, and the only basis for concluding that they should receive compensation is that their consequential loss might be found, as a matter of fact, to have been foreseeable.

Four different rules appear to have evolved as the tests for determining when emotional distress damages are recoverable in situations similar to the one in this case. The first is the impact test, requiring that there be a direct accompanying injury to the person who suffers the emotional distress as a prerequisite to its compensability.

The second rule, zone of danger, would allow recovery for serious emotional distress due to witnessing a fatal injury to a third person only if the plaintiff was personally within the zone of danger of physical impact from the defendant’s negligence. This might be the current rule in the majority of states, see Bovsun v. Sanperi, 61 NY2d 219, 228-29, 473 NYS2d 357, 461 NE2d 843 (1984), and is also the position adopted by the Restatement (Second) Torts, § 436 (1965). The facts plaintiffs pleaded here were within the scope of that rule. The New York Court of Appeals has recently reaffirmed the zone of danger rule as well as its rejection of both the impact rule and a broader rule. Bovsun v. Sanperi, supra, holds:

“* * * [W]here a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her. damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family — assuming, of course, that it is established that the defendant’s conduct was a substantial factor bringing about such injury or death.” 61 NY2d at 230-31. (Footnote omitted).

The third rule was first adopted by California in Dillon v. Legg, 68 Cal 2d 728, 69 Cal Rptr 72, 441 P2d 912 (1968), which rejected the zone of danger rule in favor of a broader rule based on the foreseeability of injury. Dillon set out three factors to guide courts in a case-by-case determination of liability: (1) whether the plaintiff was located near the accident; (2) whether the emotional distress resulted from observing the accident or learning about it from others; and (3) whether the plaintiff and the victim were “closely related.” 68 Cal 2d at 740-41.

The fourth, and most expansive rule, would compensate a psychic injury simply on the basis of its reasonable foreseeability. Supporters of this rule reject the restrictive guidelines of Dillon. Only one state, to our knowledge, has gone to this extent to compensate psychic injury. Paugh v. Hanks, 6 Ohio St 3d 72, 451 NE2d 759 (1983), does not even require that another person actually be injured by the conduct of the defendant if an injury is foreseeable and is in fact feared by the plaintiff.

The straight foreseeability test turns wholly on the rationale for imposing liability that the Supreme Court rejected in Norwest. The choices available to us, therefore, are the impact rule, the zone of danger rule or the Dillon rule (or some variation of them). We do not see that the Dillon test differs in any significant way from the zone of danger rule for purposes of this case. The first and second prongs of Dillon are necessarily met if the plaintiff was in the zone of danger, and the third prong — close relationship — was also satisfied here. Our adoption of either the Dillon or zone of danger test, although not squarely contrary to the holding in Norwest v. Presbyterian Intercommunity Hosp., supra, would run afoul of its admonition against recognizing new causes of action for indirect injuries resulting from a direct injury to another. Bovsun v. Sanperi, supra, concludes that the zone of danger rule entails a new element of damages, but does not create a new duty or a new cause of action. We do not agree. Allowing a plaintiff who has suffered emotionally by witnessing an injury to another to recover damages simply because the plaintiff was within the zone of danger would establish a cause of action not previously recognized in Oregon.

The impact rule seems to us to reflect the best policy option. The line it provides is clear, and it creates a clear relationship between compensability and the plaintiffs being a victim of a breach of duty. Although the zone of danger rule would undoubtedly result in recovery by more persons who sustain serious emotional distress, it would not provide rational differentiations between those who may and those who may not recover. For example, a parent who witnesses a child being struck by a car is not physically endangered if the parent is watching from a window, but is endangered if the parent is outdoors and in close proximity to the child; however, it is not likely that the emotional trauma would differ because of the different vantage points. A rule is not superior to its alternatives simply because it allows recovery to more plaintiffs, if there is no connection between the nature of the damages and the reason for allowing the additional plaintiffs to recover them. There is no relationship between being in the zone of physical danger and being subject to emotional traumatization from witnessing the event. We hold that the trial court did not error in dismissing the claims.

Affirmed.

1 The Supreme Court noted in Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 559, n 18, 652 P2d 318 (1982), that it had not yet examined this precise issue. Neither this court nor the Supreme Court has had occasion to consider it. In Rogers v. Hexol, Inc., 218 F Supp 453 (D Or 1962), the federal district court predicted that Oregon state courts would follow the Restatement of Torts § 313 (1933), and deny recovery to the plaintiff, who had suffered emotional distress in the absence of a physical impact as a result of her son’s being injured by a negligently labeled product. Although we reach a similar result, we do not wholly endorse the reasoning in Rogers.

Sease v. Taylor’s Pets, 74 Or App 110, 700 P2d 1054, rev den 299 Or 584 (1985), holds that damages for emotional distress without physical harm are not recoverable in a product liability action under ORS 30.920. The plaintiffs in Sease did not plead negligence as a ground for recovery. 74 Or App at 117, n 7. Sease does not control here, because it rests on an interpretation of ORS 30.920, which is not relevant to this case.

2 Plaintiff is the guardian ad litem for the three siblings who suffered emotional distress, and he sued on their behalf. We will refer to the children as “plaintiffs” in this opinion.