Bystanders' Negligent Infliction of Emotional Distress Claims in Washington State: Must You Be Present to Win?

• Publication year: 1999

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 3WINTER 2000

Bystanders' Negligent Infliction of Emotional Distress Claims in Washington State: Must You Be Present to Win?

Patrick F.X. Santel(fn*)

I. INTRODUCTION

For more than a century, the dominant theory of redress for liability for unintended harm has been negligence.(fn1) "Leading cases are filled with resounding affirmations, such as that of Commissioner Earl in Losee v. Buchanan: ' . . . the rule is, at least in this country, a universal one, which, so far as I can discern, has no exceptions or limitations, that no one can be made liable for injuries to the person or property of another without some fault or negligence on his part.'"(fn2) The necessary elements to bring a claim founded upon such negligence have traditionally been stated as follows: a legally recognized duty to protect others against foreseeable risk; a breach of that duty; a connection between the conduct and the resulting injury, commonly known as causation or "proximate cause"; and the occurrence of actual loss or damages to another.(fn3)

On many occasions, the law of negligence needs no other formulation besides the duty of reasonable care. Other cases, however, present circumstances rendering application of that general standard difficult, if not impossible. This difficulty has been recognized by courts considering liability for mental and emotional distress.(fn4) The imposition of such liability is made even more confusing when such a claim is brought by a bystander who is not physically injured.(fn5) The traditional argument is that the imposition of such liability unoccasioned by any physical impact may lead to "mere conjecture and speculation."(fn6) Thus, the "task [put to modern courts] involves the refinement of principles of liability to remedy violations of reasonable care"(fn7) while avoiding speculative results which would allow juries to impose liability that is not commensurate with the culpability of a defendant's conduct.(fn8)

Unfortunately, Washington law only complicates a court's position. As set out in Hegel v. McMahon, Washington courts, in some circumstances, do not require a bystander to be present at the time of the injury-causing event to state a claim for negligent infliction of emotional distress.(fn9) For example, a family member may recover for emotional distress if he or she merely arrives at the scene "shortly after an accident and before substantial change has occurred in the victim's condition or location."(fn10)

In responding to the alternative theory of recovery, some may argue that permitting the recovery of damages for injury to third persons will allow limitless recoveries and have ruinous consequences because such indirect losses appear to be open-ended. Many critics of such an extension of liability quote the oft-cited statement of Judge Cardozo that such liability would be ". . . liability in an indeterminate amount for an indeterminate time to an indeterminate class."(fn11) The relevant question concerns not simply recovery in an individual case, but the consequences and effects of a rule of law that would permit that recovery.

This Comment examines the route taken by the Supreme Court of Washington to afford plaintiffs their day in court while potentially forcing certain tortfeasors to pay for plaintiffs' emotional distress claims. This Comment will also examine the framework that claimants and Washington courts need for evaluating a bystander's claims of negligent infliction of emotional distress. The framework should be free of artificial, vague, and inconsistent rules, and should allow plaintiffs to recover for negligently inflicted severe emotional distress while protecting tortfeasors from spurious claims, including claims concerning minor psychic and emotional shocks, and from liability disproportionate to culpability. Moreover, the "societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate the certain limitation of bystander recovery of damages for emotional distress."(fn12)

Part II provides some background on emotional distress claims. Part III summarizes two recent cases in this area of tort law and the courts' analyses, then reviews and critiques the court opinions dealing with "shortly thereafter" language. Finally, Part IV recommends a different approach to resolving inconsistent treatment of bystander emotional distress claims.

II. Background Case Law on Bystander Emotional Distress Claims

Present case law in the area of bystander negligent infliction of emotional distress has evolved according to the dictates of public policy-that a defendant must answer for the consequences of his or her own actions, however little intended and however unforeseen. Whichever theory of recovery one considers in this area of tort law, one is sure to encounter considerable difficulty associated with setting a boundary for liability.

Some jurisdictions which have found liability for the negligent infliction of emotional distress upon a bystander have placed limits on this type of negligence liability consistent with their view of the individual interest being injured.(fn13) Although a defendant's duty to a potential plaintiff is often analyzed in terms of foreseeability, such analysis could result in an unlimited class of plaintiffs and injuries. After all, it is certainly foreseeable from a factual standpoint that many persons, including strangers, may experience emotional distress as the result of any given accident or injury.(fn14) Furthermore, it is clearly more foreseeable that a close family member will experience severe emotional distress upon merely learning of the injury to or death of a loved one.(fn15)

Since 1968 some United States jurisdictions have recognized a duty toward people who were not touched or endangered in the accident, provided that certain other criteria were met. This approach is commonly named after the California case that originated it, Dillon v. Legg.(fn16)

In this landmark case, California became the first jurisdiction to allow a bystander who was not in any physical danger to recover for the emotional distress that arose upon viewing injuries to a third person.(fn17) In Dillon, a mother and sister witnessed an automobile strike and kill a family member.(fn18) The California Supreme Court awarded the mother damages for the negligent infliction of emotional distress proximately caused by the driver who struck and killed her daughter.(fn19) The Dillon court thereby overruled prior case law requiring that the emotional distress plaintiff be within the "zone of danger."(fn20)

The Dillon court enunciated a then-novel three-factor test for other courts to follow in determining whether a defendant owed the emotionally distressed plaintiff a duty of care.(fn21) The courts will take into account such factors as: whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and whether the plaintiff and the victim were closely related, as opposed to the absence of any relationship or the presence of only a distant relationship.(fn22)

The first factor discussed in Dillon-that the plaintiff be near the injured person-is the central issue in the Washington courts' recent obfuscation in this area of tort law. The physical proximity is relevant to show the closeness of the emotional bond between the plaintiff and the injured family member and the resulting harm to the plaintiff. For example, one would generally suppose that the risk of emotional distress to a brother who is halfway across the country is not as great as the risk to a mother or father who is at the scene of the accident. However, others have argued that the risk of emotional injury exists by virtue of the plaintiffs perception of the accident, not his proximity to it.(fn23)

A. Analysis of the Elements of Emotional Distress Claim

In addition to debating whether the plaintiff is owed a duty and what the plaintiff actually observes, we must examine the basic principles underlying the tort of negligent infliction of emotional distress. The Dillon court held that liability could be circumscribed in these types of cases, as in all tort cases, by the application of the general principles of negligence.(fn24)

Courts interpreting the Dillon factors have emphasized that a plaintiff will more likely suffer when physically close to an accident.(fn25) Moreover, courts have determined that an individual observing an accident firsthand will likely suffer greater trauma than one learning of it later.(fn26)

1. "Danger Zone"

The time-honored case of Palsgraf v. Long Island R.R. Co.(fn27) articulates the principles underlying the zone of danger rule that Dillon applied as its first element. Palsgraf limited defendants' duties to exercise reasonable care to an area in which their actions could foreseeably physically endanger others.(fn28) The zone of danger rule requires the plaintiff to be the object of immediate threat of harm. Thus, under the zone of danger rule, a bystander not threatened with physical harm does not have a cause of action to recover for emotional distress.(fn29) For...