Hedgepeth v. Whitman Walker Clinic

Appellant Terry Hedgepeth alleges that he suffered serious emotional distress after the doctor he saw at the Whitman Walker Clinic negligently informed him that he was HIV positive when, in fact, he was not. Appellant presented evidence that, as a result of the mistaken diagnosis, he was severely clinically depressed and suffered repercussions in his employment and personal life until another clinic correctly informed him that he was not afflicted with HIV, five years later. The Superi- or Court granted appellees’ motion for summary judgment on the grounds that appellant had failed to establish the requisite facts for the tort of negligent infliction of emotional distress, where there is no other harm. A division of this court affirmed, agreeing with the Superior Court that appellees’ alleged negligence did not place appellant within a “zone of physical danger,” as required for recovery of emotional distress damages by Williams v. Baker, 572 A.2d 1062 (D.C.1990) (en banc). Hedgepeth v. Whitman Walker Clinic, 980 A.2d 1229 (D.C.2009).

We granted the petition for rehearing en banc to decide whether the “zone of physical danger test” should be applied to preclude appellant’s claim that his doctor’s negligent misdiagnosis caused him serious emotional injury. Hedgepeth v. Whitman Walker Clinic, 990 A.2d 455 (D.C.2010). After reviewing the development of the law on this issue and the reason for the Williams zone of physical danger test, we conclude that appellant’s claim should not be barred simply because he was not put at risk of physical injury. Although the rule in Williams continues to be generally applicable to claims of negligent infliction of emotional distress, the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule— itself a limited one — that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiffs emotional well-being or the plaintiffs emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence. We conclude this is such a case: the appellees, in the context of a doctor-patient relationship, undertook to test and treat appellant for HIV, an undertaking that would necessarily implicate the patient’s emotional well-being and entailed a specially likely risk of serious emotional distress. Appellant has presented evidence supporting his allegations that appellees negligently misdiagnosed him as being HIV positive and that this misdiagnosis caused him to suffer serious emotional distress. We, therefore, reverse the grant of summary judgment for appellees and remand the case for further proceedings consistent with the principles we set out in this opinion.

*793I. General Principles of Negligence

It is well-established that a claim alleging the tort of negligence must show: (1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach. See, e.g., District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C.1984) (citing Prosser, Handbook of the Law of Torts § 30 (4th ed.1971) (hereinafter “Handbook of the Law of Torts”)). The court’s threshold determination— namely, the existence of a duty — is “essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id. at 321 (quoting Handbook of the Law of Torts, supra, § 42). Stated another way: “The statement that there is or is not a duty begs the essential question — whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct.” Id. (quoting Handbook of the Law of Torts, supra, § 53). In this case, we are tasked with determining the scope of the duty to avoid causing emotional distress that results from negligence.

A. Duty and Foreseeability

In general, courts rely on the concept of “foreseeability” to determine whether the defendant owed a duty to the claimant in a negligence action and examine whether the risk to the claimant was “reasonably foreseeable” to the defendant.1 See, e.g., District of Columbia v. Shannon, 696 A.2d 1359, 1366 (D.C.1997); Haynesw orth, v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C.1994). If the injury that befell the plaintiff was “reasonably foreseeable” to the defendant, then courts will usually conclude that the defendant owed the plaintiff a duty to avoid causing that injury; if the injury was not “reasonably foreseeable,” then there was no duty. Compare Shannon, 696 A.2d at 1366 (holding that because playground accident due to poor maintenance could have been reasonably foreseeable to the District, trial court properly denied District’s motion for judgment on the ground it owed no duty to child using playground), with Galloway v. Safeway Stores, Inc., 632 A.2d 736, 739-40 (D.C.1993) (holding that grocery store did not have “duty to foresee and protect” customer from rowdy children).2 See also Bd. of Trs. of the Univ. of the District of Columbia v. DiSalvo, 974 A.2d 868, 870-71 (D.C.2009) (discussing the required showing of “heightened foreseeability” where the plaintiff claims that the defendant should be held liable for intervening criminal acts).

*794B. Duty and the Relationship Between the Parties

The relationship between the plaintiff and the defendant is closely related to a court’s determination of the foreseeability of the plaintiffs injury and, ultimately, the scope of the defendant’s duty. See, e.g., Washington Metro. Area Transit Auth. v. O’Neill, 638 A.2d 834, 840 (D.C.1993) (“[Wjhere a special relationship exists, such as between a common carrier and its passengers, the carrier undeniably has a duty to protect its passengers from foreseeable harm arising from criminal conduct of others.”); Graham v. M & J Corp., 424 A.2d 103, 105 (D.C.1980) (“It is established in the District of Columbia that a landlord has a duty to use reasonable care to keep safe those common areas of the building retained under his control”). We have described a court’s examination of whether a duty exists as a “foreseeability of harm test” that is determined, in large part, by the nature of the relationship between the parties: Odemns v. District of Columbia, 930 A.2d 137, 143 (D.C.2007) (alteration in original) (quoting W.C. & AN. Miller Co. v. United States, 963 F.Supp. 1231, 1248 (D.D.C.1997)). Thus, “the scope of the defendant’s undertaking determines the scope of its duty,” Haynesworth, 645 A.2d at 1098, by which we mean that the foreseeable risks associated with the defendant’s failure to complete an undertaking provide the basis for the court’s assessment of duty. Recently, we have even suggested that “the relationship between the parties is the key to determining whether the defendant had a legally enforceable duty to the plaintiff,” Bd. of Trs., 974 A.2d at 871 n. 1 (quoting Workman v. United Methodist Comm., 355 U.S.App.D.C. 131, 137, 320 F.3d 259, 265 (2003)) (emphasis added), and that issues related to foreseeability might better be “eonfine[d] ... to the proximate cause analysis.” Id. (citing Pros-ser and Keeton on Torts, supra, § 53, at 356).

In determining the existence of a duty owed to a plaintiff, [courts] have applied a “foreseeability of harm” test, which is based on the recognition that duty must be limited to avoid liability for unreasonably remote consequences.... Inherent also in the concept of duty is the relationship between the parties out of which the duty arises .... [U]ltimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiffs interest[s] are, or are not, entitled to legal protection against the conduct of the defendant.

In general, therefore, there is only a minimal duty — if any — owed to a party who is at arms’ length.3 Once the defendant enters into a relationship with the plaintiff, however, a corresponding duty of care arises. See, e.g., Tolu v. Ayodeji, 945 A.2d 596, 603 (D.C.2008) (“In negligence actions the standard of care by which the defendant’s conduct is measured is often stated as ‘that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances.’ ” (quoting Morrison v. MacNamara, 407 A.2d 555, 560 (D.C.1979))); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C.2009) (discussing the national stan*795dard of care applicable in medical malpractice claim against a surgeon). If the applicable standard of care is breached, the person to whom the duty is owed may recover for damages proximately caused by the negligence, including damages for physical injury, monetary loss, and ancillary or “parasitic” damages for related mental distress (sometimes referred to as “pain and suffering”). See, e.g., Washington & Georgetown R.R. Co. v. Dashiell, 7 App.D.C. 507, 514 (1896) (“Where a party has suffered physical injury, it seems to be well settled, that mental pain and suffering, attendant upon and as a natural incident of such bodily injury, may be considered as an element in estimating the damages.”).

II. Development of the Tort of Negligent Infliction of Emotional Distress

Claims of negligence that seek damages for only mental pain and suffering (independent of any physical injury) historically have been analyzed under a different framework, however. Here, as in other jurisdictions, courts have long been reluctant to hold defendants liable when their negligence causes emotional distress without accompanying physical injury.4 Courts’ historic skepticism of emotional distress claims focused on three concerns: avoiding fictitious or trivial claims, the difficulty of establishing (or disproving) the nature and extent of the alleged mental injury, and limiting liability. See, e.g., Restatement (SeCond) of ToRts, swpra, §§46 cmt. b (discussing the tort of intentional infliction of emotional distress), 436A cmt. b (discussing the tort of negligent infliction of emotional distress).

Thus, over a century ago, in Washington 6 Georgetown R.R. Co., the Court of Appeals of the District of Columbia considered and rejected a claim for damages resulting from “impairment of the plaintiffs nervous system,” explaining:

We know that, from repeated scares or frights, persons are liable to have their sensibilities easily, and in some cases morbidly excited, and that seems to be the case here. But the law furnishes no remedy for such sensitive condition. To attempt to furnish a legal remedy in such case, would open the door to the wildest speculation. Without for a moment intimating that simulation existed in this case, yet the nature of such claim would render it easy of simulation; and if not simulated, the temptation would be strong to exaggeration, and the assigning of one cause for another in the production of the morbid state of the nervous sensibilities; and all this, though it might be without real foundation, would be most difficult to disprove by the party sought to be charged.

7 App.D.C. at 515 (emphasis added).5 These concerns led the Court of Appeals for the District of Columbia to unequivocally assert, in 1939, that “[t]he law does not ... impose a general duty of care to avoid causing mental distress.” Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 185, 105 F.2d 62, 64 (1939). As should be clear, the different treatment accorded claims of mental distress is not based on a straightforward application of the tradi*796tional principles of negligence discussed in the previous section. Rather, by framing the question in terms of “duty,” instead of proximately caused damages, courts have purposely developed the common law to balance competing societal interests. In the words of the Clark court: “For the sake of reasonable freedom of action, in our own interest and that of society, we need the privilege of being careless whether we inflict mental distress on our neighbors.” Clark, 70 App.D.C. at 185, 105 F.2d at 64.6

A. The “Physical Impact” Requirement

Having rejected a “general” duty of care to avoid causing emotional distress, courts, including in this jurisdiction, have imposed liability for the negligent infliction of emotional distress only in limited situations, when additional factors are present that avoid or mitigate the three policy concerns outlined above. In the District of Columbia, our definition of the tort of negligent infliction of emotional distress has evolved over the years. In its earliest iteration, we followed the “physical impact” rule, which permits recovery for negligently inflicted emotional distress if the distress results from a physical impact and is accompanied by physical injury. See Asuncion v. Columbia Hasp, for Women, 514 A.2d 1187, 1188-89 (D.C.1986) (citing cases going back to 1929, e.g., Perry, 59 App. D.C. at 44, 32 F.2d at 940); Washington & Georgetown R.R. Co., 7 App.D.C. at 514-15. The physical impact requirement, although de minimis, see Asuncion, 514 A.2d at 1189 (“minimal physical impact” requirement was satisfied by the “mere presence” of post-procedure medical gauze in a patient’s body), was thought to provide some guarantee of the legitimacy of the mental harm alleged and thereby deter frivolous claims. See id. at 1189 n. 1; Williams, 572 A.2d at 1065.

B. The “Zone of Physical Danger” Rule

In Williams v. Baker, this court, sitting en banc, abandoned the “physical impact” requirement in favor of the more liberal “zone of physical danger” rule, which permits recovery for mental distress if the defendant’s actions caused the plaintiff to be “in danger of physical injury” and if, as a result, the plaintiff “feared for his own safety.”7 572 A.2d at 1066. In addi*797tion, we said, the alleged emotional distress must be “ ‘serious’ and ‘verifiable.’ ” Id. at 1068 (quoting Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843, 849 (1984)). Under the rule set forth in Williams, the plaintiff no longer needed to show that her emotional distress was the result of a “physical impact.” Id. at 1067.

In rejecting the physical impact requirement, we asserted that two of the earlier objections to emotional distress claims— distrust of the available proof of mental distress and the related fear of frivolous claims — no longer presented compelling reasons for courts to impose such strict legal limitations on the scope of an actor’s duty. As we explained:

[Requiring physical impact is no longer a necessary safeguard against fraudulent claims. Due to advances in medical research and improved diagnostic techniques, the presence of emotions such as grief, anxiety, and anger is frequently accompanied by physical indicia that are capable of objective proof.

“It appears completely inconsistent to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all, but that the slightest impact ... suddenly bestows upon our medical colleagues the knowledge and facility to diagnose the causal connection between emotional states and physical injuries.”

Id. at 1067 (alteration in original) (quoting Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 87 (1970)). Therefore, “[o]nee the physical consequences of fright are recognized as deserving of legal protection, it would be arbitrary to limit compensation to instances in which there has been an impact.” Id. One year after Williams was decided, we clarified that although the plaintiffs emotional injury must be “serious and verifiable,” the plaintiff need not experience a physical manifestation of the mental injury. Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C.1991).

While recognizing that it no longer made sense to disqualify claims of emotional distress as a class, Williams noted that one concern remained: even if legitimate, claims for emotional distress resulting from negligent conduct might be nearly limitless if we were to rely on traditional negligence principles of foreseeability to determine the scope of the negligent actor’s liability.8 We concluded that the benefit of providing a remedy for legitimate tortious wrongs had to be balanced against the danger of “imposing virtually infinite liability based on foreseeability when the conduct is merely negligent.”9 Williams, 572 A.2d at 1069. Thus we declined to follow the “foreseeability of risk test” adopted by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968).10 Williams, *798572 A.2d at 1070 (“If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined.” (quoting Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 423 (1969))).11 We decided, therefore, that a rule requiring that the defendant’s conduct place the plaintiff in a “zone of physical danger” was a necessary and logical alternative to a rule that relied on foreseeability alone. We reasoned that “liability in tort law is based on a breach of duty and it is rational to postulate that the tortfeasor owes a duty of care only to those who are physically endangered by the tortfeasor’s negligent act.” Id. at 1072. In conclusion, we adopted the position expressed by the New York Court of Appeals:

The zone-of-danger rule provides a circumscribed alternative to the apparently sweeping liability recognized in Dillon v. Legg, and does so within the framework of traditional and accepted negligence principles by using an objective test of whether the plaintiff was unreasonably threatened with bodily harm by the conduct of the defendant....

Id. at 1073 (quoting Bovsun, 473 N.Y.S.2d 357, 461 N.E.2d at 848). See also id. at 1066 (citing with approval a similar rule in the Restatement (Second) of Torts § 436(2) (1977)). Following our decision in Williams, we have emphasized that the “zone of physical danger test” is the “sole means for assessing a claim for damages for negligently inflicted emotional distress.” Washington v. John T. Rhines Co., 646 A.2d 345, 347-48 (D.C.1994).

C. Application of the “Zone of Physical Danger” Rule

Because Williams limits recovery to “direct” victims of the tortfeasor’s negligence, i.e., those who are distressed by “fear for his [or her] own safety as opposed to the safety of a third party,” 572 A.2d at 1066 n. 12, see also supra note 7, we have subsequently denied claims brought by bystanders who witnessed harm to another, but did not fear for their own safety. See Johnson v. District of Columbia, 728 A.2d 70 (D.C.1999) (mother’s distress as a result of watching her child being scalded in bathtub); Washington, 646 A.2d at 348 (claim against funeral home for mishandling of spouse’s corpse); McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708 (D.C.1991) (bystander distress after witnessing several relatives die in automobile accident at bus stop). And because Williams required that the victim *799be in a “zone of physical danger” even when claims of emotional distress were brought by “direct” victims of negligent acts, we have permitted such claims to proceed only in those instances where there was evidence that the plaintiffs concern for her own safety or health arose from being in a “zone of physical danger” created by the defendant’s negligent conduct: where the plaintiff was in close proximity to gunshots that killed her son, District of Columbia v. Evans, 644 A.2d 1008 (D.C.1994); where there was evidence that the plaintiff might have consumed a foreign object (a worm) in her food, Sowell v. Hyatt Corp., 623 A.2d 1221 (D.C.1993); and where the pregnant plaintiff had undergone X-rays and a gallbladder operation causing her to fear injury to herself and the twins she had been carrying, Jones, 589 A.2d 419.12 In every other case, we rejected claims made by direct victims because they failed to establish that they were placed in physical danger by the defendant’s alleged negligence.See Minch v. District of Columbia, 952 A.2d 929, 941-42 (D.C.2008) (rejecting claim brought by murder suspect who alleged emotional distress as a result of mistreatment during negligent police investigation); Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d 821, 828 (D.C.2004) (rejecting claim brought by patients after they were informed that a radiology technician had substituted certain syringes that contained only saline solution for syringes that should have contained pain medication); Drejza v. Vaccaro, 650 A.2d 1308, 1312 n. 9 (D.C.1994) (rejecting claim by rape victim subjected to verbal abuse during investigation by police officer at police station); cf. Morgan v. Psychiatric Inst, of Washington, 692 A.2d 417 (D.C.1997) (recognizing emotional distress claim brought by patient who argued that sexual intimacy with psychotherapist provided sufficient evidence of actual physical injury to withstand motion for summary judgment). In short, since Williams, we have applied the zone of physical danger test to all negligence actions where the only injury claimed was mental or emotional distress, regardless of the context in which the claim arose.13

III. Emotional Distress Damages in Established Relationships

In this appeal, appellant urges us to abandon our reliance upon the “zone of physical danger” test as the sole means of recovery for the tort of negligent infliction *800of emotional distress.14 Specifically, appellant and amicus supporting his claim argue that recovery also should be permitted in those cases where the negligent actor has a relationship or has committed to an undertaking with the plaintiff of such nature that negligent performance of a legal obligation to the plaintiff is very likely to cause serious emotional harm, and, in fact, does so. The question is not whether the “zone of physical danger” rule should be jettisoned and replaced with the proposed “relationship” or “undertaking” rule in every case. Rather, the issue presented in this appeal is whether — in addition to permitting recovery based on the “zone of physical danger” rule — the law should allow courts to conclude that a defendant has assumed a duty to avoid inflicting emotional distress in certain cases where the underlying relationship or undertaking is such that it is not only foreseeable, but especially likely, that the defendant’s negligence will cause serious emotional distress to the plaintiff. For the reasons we now discuss, we agree with appellant, and adopt a supplemental rule, as defined in this opinion.

A. The Proposed Special Relationship or Undertaking Rule

Appellant’s argument that the “zone of physical danger” rule should not be the sole route for recovery in all cases seeking damages for serious emotional distress finds support in Section 46 of the draft Restatement (Third) of Torts:

§ 46 Negligent Conduct Directly Inflicting Emotional Disturbance on Another

An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct;

(a) places the other in immediate danger of bodily harm and the emotional disturbance results from the danger; or

(b) occurs in the course of specified categories of activities, undertakings, or. relationships in which negligent conduct is especially likely to cause serious emotional disturbance.

Restatement (Third) of Torts § 46 (Tentative Draft No. 5, 2007) (hereinafter, “draft Third Restatement”).15 Subsection (a) of Section 46, which refers to “immediate danger of bodily harm,” corresponds to the Williams “zone of physical danger” rule. Subsection (b), which refers to “specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance,” would encompass claims, such as appellant’s, which arise from a doctor-patient relationship in which the doctor negligently misdiagnosed the patient with a grave illness, with the likely result that it would (and did) cause serious emotional distress. Thus, as articulated by the drafters of § 46 of the draft Third Restatement, a rule that finds a duty based upon “undertakings or relationships” is a supplement to — rather than a substitute for — the “zone of physical danger” rule that permits recovery in the absence of such a relationship. Under either test, only direct victims of the actor’s negligence can recover.16

*801Section 46 of the draft Third Restatement has evolved from the current version of the Second Restatement, issued in 1977, which relies upon the plaintiff having suffered actual physical injury as a limitation on potential claims for emotional distress. Indeed, the zone of physical danger test set forth in the Second Restatement is more restrictive than the one we have adopted in this jurisdiction, as it requires that the plaintiff suffer physical injury as a result of the alleged emotional distress.17 In Williams, when we cited the Second Restatement’s endorsement of the zone of physical danger rule as support for our decision to abandon the physical impact requirement, see 572 A.2d at 1066, we did not decide “whether one who is physically endangered by [a] defendant’s negligence may recover for ... emotional distress in the absence of physical injury.” Id. at 1067. But in 1991, the year after we decided Williams, we clarified that our definition of the tort of negligent infliction of emotional distress does not require that the plaintiff suffer physical injury. Jones, 589 A.2d at 424.

The draft Third Restatement, which has been under consideration since 1996, removes the physical injury requirement from the “zone of physical danger” rule (as we did in 1991) and adds “specified categories of activities, undertakings, or relationships” as additional bases for establishing a defendant’s liability for emotional distress. These changes are intended to reflect developments in the law, specifically the “line of cases [that] recognizes an exception to the general no-liability rule when an actor undertakes to perform specified obligations, engages in specified activities, or is in a specified relationship fraught with the risk of emotional disturbance.” Restatement (Third) of Torts, supra, § 46 cmt. b. The drafters justify this additional basis for establishing a duty on the ground that “[l]imiting recovery for emotional harm to those in the relationship or those for whom the undertaking or activity was being performed limits the scope of liability for negligently inflicted emotional harm, thereby avoiding concern about indeterminate and excessive liability.” Id.

Professor Dobbs’s modern treatise on torts explains why such a rule addresses the problem of potentially infinite liability *802that has been of central judicial concern in emotional distress cases:

When the defendant owes an independent duty of care to the plaintiff, there is no risk of unlimited liability to an unlimited number of people. Liability turns solely on relationships accepted by the defendant, usually under contractual arrangement. Consequently, the duty extends only to those for whom the contract was made.... For these two reasons, the zone of danger and contemporaneous awareness rules are not needed to limit liability to an appropriate sphere.

ProsseR AND Keeton on Torts, supra, § 312, at 849 (discussing the rule adopted by California in Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992)). We agree with the draft Third Restatement and Professor Dobbs’s observation that no special rule (such as the zone of physical danger test) is necessary to guard against the risk of imposing a duty that might be unlimited or unreasonable when emotional harm is especially likely to be caused as a direct result of negligent performance of a duty to avoid such harm owed to a specific person. Such a duty can, but need not, arise from a contractual arrangement between the parties.18 The key point is that the requirement of a special relationship between the parties or undertaking by the defendant to the plaintiff limits the scope of the defendant’s potential liability to identifiable persons, rendering the “zone of physical danger” requirement unnecessary to achieve that purpose.

Indeed, a number of courts around the country have held that a defendant has a duty to avoid causing emotional distress to a plaintiff if the defendant has undertaken an obligation to benefit the plaintiff and if that undertaking, by its nature, creates not only a foreseeable, but an especially likely, risk that the defendant’s negligent performance of the obligation will cause serious emotional distress. This means that not every existing relationship or undertaking will suffice to create a duty to avoid the negligent infliction of emotional distress. Thus, courts consider the nature of the relationship between the parties and the likelihood that emotional distress will be caused by negligent performance of a recognized obligation before permitting stand-alone claims for emotional distress. See, e.g., Taylor v. Baptist Med. Ctr., Inc., 400 So.2d 369, 374 (Ala.1981) (“[Wjhere the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably *803result in mental anguish or suffering, it is just that damages therefore be taken into consideration and awarded.” (quoting Stead v. Blue Cross-Blue Shield of Alabama, 346 So.2d 1140, 1143 (Ala.1977)));19 Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995) (“[Wjhenever a defendant stands in a contractual or fiduciary relationship with the plaintiff and the nature of this relationship imposes on the defendant a duty to refrain from conduct that would foreseeably result in emotional harm to the plaintiff, the plaintiff need not establish a physical injury in order to recover for the negligent infliction of emotional distress.”); Burgess, 9 Cal.Rptr.2d 615, 831 P.2d at 1202 (noting that “a cause of action to recover damages for negligently inflicted emotional distress will lie ... in cases where a duty arising from a preexisting relationship is negligently breached” and explaining that the “[fjore-seeability and certainty of [a] mother’s [emotional] injury in labor and delivery cases” is a policy consideration that favors liability); Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489,