Clohessy v. Bachelor

In this appeal we must determine whether a parent and a sibling can recover damages for the emotional anguish they sustained by witnessing the parent’s other young child being fatally injured as a result of an accident caused by the negligence of the defendant. We conclude that, because certain conditions have been satisfied, both the parent and the sibling of the tort victim may recover damages for the negligent infliction of emotional distress.

In the third count of a three count1 complaint, the plaintiffs Mary A. Clohessy (Clohessy) and her son Liam Clohessy (Liam),2 respectively, the mother and brother of the decedent, Brendan P. Clohessy (Brendan), sought damages for the severe emotional distress they allegedly suffered as a result of observing an automobile *33operated by the defendant Kenneth L. Bachelor3 strike Brendan, resulting in Brendan’s death. After the trial court granted the defendant’s motion to strike the third count of the plaintiffs’ complaint on the ground that it failed to state a cause of action,4 judgment was rendered against Clohessy and Liam on that count.5 We reverse the trial court’s judgment and remand the case for further proceedings.

The facts alleged in, and to be inferred reasonably from, the third count of the complaint are as follows. On March 22, 1993, Brendan, a seven year old child, left St. Mary’s Church on Hillhouse Avenue in New Haven with his mother, Clohessy, and his brother, Liam, and attempted to cross Hillhouse Avenue at the intersection of Trumbull Street within a marked crosswalk. Liam was immediately to the right of Clohessy and Brendan was immediately to her left. The defendant was operating an automobile on Trumbull Street at an excessive speed when the exterior side view mirror of his vehicle struck Brendan’s head, hurling Brendan onto the road.6 Both Clohessy and Liam witnessed the impact *34and went to Brendan’s assistance, holding him as he experienced pain and suffering from his fatal head injuries. They suffered serious injuries as a result of the emotional shock and mental anguish of witnessing the accident that eventually led to Brendan’s death.

I

In granting the defendant’s motion to strike the plaintiffs’ third count seeking damages for emotional distress suffered by a bystander, the trial court relied upon our decisions in Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959), Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980), and Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). We therefore begin our analysis with a review of those cases.

In Strazza, the defendant negligently drove his truck onto the porch of the plaintiffs house. “The impact shook the house, causing the plaintiff to drop the dishes [she was holding], lose her balance, and lean against the sink. . . . The plaintiff screamed with fright and became hysterical, thinking of disaster by earthquake. . . . Sometime after the impact, her husband inquired about [their seven year old child], and the plaintiff, thinking that the boy had been on the porch, became fearful that he had been injured. This fear aroused a new anxiety.” Strazza v. McKittrick, supra, 146 Conn. 716-17. The plaintiffs only medical treatment was for a nervous condition that resulted from the fear of injury to her child. The court concluded that the plaintiff, because she “was within the range of ordinary danger,” could recover damages for the emotional distress she experienced as a result of her being put in fear for her own safety, even though she had sustained no consequential physical injury. Id., 718. In reaching its conclusion, the court relied on Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941), which held that “where it is proven that negligence proximately caused *35fright or shock [with respect to the person’s own safety] in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover.”

In Strazza, however, the court did not permit the plaintiff to recover for the fright she had suffered from mistakenly believing that her child had been on the porch and had been injured. Relying upon the decisions of the courts of other states prior to 1959, which universally denied recovery for bystander emotional distress, the court held that the plaintiff “cannot recover for injuries occasioned by fear of threatened harm or injury to the person or property of another. . . . Such injuries are too remote in the chain of causation to permit recovery. . . . Even where a plaintiff has suffered physical injury in the accident, there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another. [Annot.] 18 A.L.R.2d 220, 224, 234; 38 Am. Jur. 660, § 18; 67 C.J.S. 761, § 55.” (Citations omitted.) Strazza v. McKittrick, supra, 146 Conn. 719.

In Amodio, the plaintiff mother sought damages for emotional distress sustained as a result of the defendant physician’s alleged medical malpractice that she claimed caused the death of her daughter. The plaintiff urged this court to recognize a cause of action for bystander emotional distress as set forth in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). The California Supreme Court in Dillon, relying on established principles of negligence, focused on foreseeability, and held that “[s]ince the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability *36such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.” Id., 740. The Dillon court then set forth three factors to consider in determining whether the emotional injury to the bystander is reasonably foreseeable: “(1) Whether [the] 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 [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether [the] plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id., 740-41.

The Dillon court went on to state that “[t]he evaluation of these factors will indicate the degree of the defendant’s foreseeability: obviously [the] 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. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.” Id., 741.

The court in Amodio recognized that a “growing number of jurisdictions, beginning in 1968 with the California decision in Dillon . . . have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party.” Amodio v. Cunningham, supra, 182 Conn. 87. *37The court also observed that under Dillon “the requirement of ‘sensory and contemporaneous observance’ does not require a visual perception of the impact although it does require that the plaintiff bystander otherwise apprehend the event.” Id., 89-90. Without rejecting the foreseeability approach, the Amodio court held that the plaintiff mother could not recover under Dillon because she did not have a contemporaneous sensory perception of the doctor’s acts of negligence. “Merely observing the consequences of the defendant’s negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander.” Id., 90.

This court again addressed the question of bystander emotional distress based upon medical malpractice in Maloney v. Conroy, supra, 208 Conn. 392, where the tort victim was the plaintiffs mother. After Amodio, but before Maloney was decided, however, California, in Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985), relaxed Dillon's contemporaneous sensory perception requirement in the context of a medical malpractice case. In Ochoa, as in Maloney, the plaintiff observed the effects of the medical malpractice over a period of time. The Supreme Court of California concluded that “the ‘sudden occurrence’ requirement is an unwarranted restriction on the Dillon guidelines”; id., 168; and that the contemporaneous perception of the negligent act requirement for a medical malpractice case was satisfied “when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child . . . .” Id., 170.

In Maloney, this court, again leaving the door open for the foreseeability rule as set forth in Dillon, rejected the California Supreme Court’s reasoning in Ochoa. *38“Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.” (Internal quotation marks omitted.) Maloney v. Conroy, supra, 208 Conn. 402.

When this court decided Strazza in 1959, the nearly unanimous weight of authority refused, as previously stated, to recognize a cause of action for bystander emotional injuries. Indeed, even with respect to fear of injury to oneself, many courts required that there be actual physical impact with the plaintiffs person in order for there to be recovery for emotional distress. W. Prosser, Torts (4th Ed. 1971) § 54, p. 333; annot., 18 A.L.R.2d 220 (1951). If, however, there was “impact some [courts] have been willing to allow damages due in part to fear for another.” W. Prosser, supra, p. 333. “Until 1968 the only cases allowing recovery for mental disturbance at the peril of another were old ones in intermediate courts, which were ambiguous, and probably to be explained on the basis of threatened physical injury to the plaintiff herself.” Id., p. 334.

Since this court decided Strazza, two principal schools of thought have emerged in support of allowing bystanders a cause of action for emotional distress — “zone of danger” and “reasonable foreseeability.” We now examine the respective merits of each of these schools of thought.

A

In 1965, six years after Strazza and three years before Dillon, the American Law Institute adopted §§313 and *39436 of the Restatement (Second) of Torts (1965),7 which generally allow recovery for emotional distress suffered by a bystander under the zone of danger theory. Simply stated, the zone of danger rule “allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family . . . .” Bovsun v. Sanperi, 61 N.Y.2d 219, *40228, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984). The rule is premised on the “concept that by unreasonably endangering the plaintiffs physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant’s conduct.” Id., 229; 2 Restatement (Second), supra, § 313.8 Although permitting recovery for damages on a claim of bystander emotional distress, advocates of the zone of danger rule argued that “[u]se of the [rule] . . . mitigates the possibility of unlimited recovery ... by restricting liability in a much narrower fashion than does the Dillon rule.”9 Bovsun v. Sanperi, supra, 229. The New York Court of Appeals has further restricted liability under the zone of danger rule by holding that “[Recovery of damages by bystanders for the negligent infliction of emotional distress should be limited only to the immediate family.” Trombetta v. Conkling, 82 N.Y.2d 549, 551, 626 N.E.2d 653, 605 N.Y.S.2d 678 (1993).

*41Prior to the adoption of § 313 of the second Restatement of Torts, the first Restatement suggested, in its comments, a reasonable foreseeability rule. Indeed, as the Supreme Judicial Court of Massachusetts pointed out, the addition of the zone of danger test in § 313 (2) of the Restatement (Second) of Torts “was recommended with reluctance by the Reporter (Dean Prosser) and the advisers (Restatement [Second] of Torts 9-11 [Tent. Draft No. 5, I960]), but the recommendation was thought to be compelled by the absence of then recent authority in support of a contrary view. . . . As a result of adding § 313 (2), a caveat appearing in the first Restatement of Torts was deleted. That caveat had left open the question whether a person might be liable ‘to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock’ causing bodily harm to the parent or spouse. Restatement of Torts § 313, at 851 (1934).” (Citation omitted.) Dziokonski v. Babineau, 375 Mass. 555, 563, 380 N.E.2d 1295 (1978).

B

Dillon was decided three years after the American Law Institute had adopted the zone of danger limitation on bystander emotional distress set forth in §§ 313 and 436 of the Restatement (Second), supra. Dillon changed the landscape for claims of bystander emotional distress. As previously noted, the California Supreme Court decided Dillon based upon general principles of foreseeability, with its limitations to be decided on a case-by-case basis. The three factors in Dillon were not conditions or limitations, but, rather, circumstances to consider in determining whether the emotional injury was reasonably foreseeable. In 1989, however, a majority of the California Supreme Court in Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989), found that reeoveiy of bystander emotional distress based upon “reasonable foreseeability” *42required limitations. The court in Thing was concerned with the broad scope of liability under the foreseeability rule: “[I]t is clear that foreseeability of the injury alone is not a useful ‘guideline’ or a meaningful restriction on the scope of the [bystander emotional distress] action. The Dillon experience confirms, as one commentator observed, that ‘[f]oreseeability proves too much. . . . Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm.’ Rabin, [‘Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment,’ 37 Stan. L. Rev. 1513, 1526 (1985)]. It is apparent that reliance on foreseeability of injury alone in finding a duly, and thus a right to recover, is not adequate when the damages sought are for an intangible injury. In order to avoid limitless liability out of all proportion to the degree of a defendant’s negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.” Thing v. La Chusa, supra, 663-64. The California Supreme Court concluded that “drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.” Id., 666.

Accordingly, in Thing, the court held “that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Id., 667-68.

*43A number of jurisdictions have adopted the Thing guidelines in an effort to limit the scope of the defendant’s duty to third party bystanders. See Cameron v. Pepin, 610 A.2d 279, 284 (Me. 1992) (“defendant’s duty should be limited to the emotional vulnerability that arises in parents upon actually witnessing their child receiving an injury”); Nugent v. Bauermeister, 195 Mich. App. 158, 161, 489 N.W.2d 148 (1992) (limited recovery to immediate family members as opposed to close friends); Marchetti v. Parsons, 638 A.2d 1047, 1052 (R.I. 1994) (“[w]e find the reasoning of the California Supreme Court [in Thing] persuasive and follow its lead in modifying the Dillon standard that we [previously] followed”); Heldreth v. Marrs, 188 W. Va. 481, 488, 425 S.E.2d 157 (1992) (“[hjaving the benefit of the Thing court’s hindsight, we too adopt the requirement that a plaintiff in a negligent infliction of emotional distress action be present at the scene of the injury-producing event at the time it occurs and [be] aware that it is causing injuiy to the victim”).

Nevertheless, a number of jurisdictions continue to apply the foreseeability rule as set forth in Dillon, rejecting completely or in part the limitations subsequently established by the court in Thing. See Beck v. Dept. of Transportation & Public Facilities, 837 P.2d 105, 110 (Alaska 1992) (retained liberal interpretation of Dillon guidelines and rejected restrictive approach taken by court in Thing regarding contemporaneous observation requirement); Dunphy v. Gregor, 136 N.J. 99, 106-108, 642 A.2d 372 (1994) (noting that it previously narrowed Dillon, the court rejected “a departure from our accustomed application of the traditional principles of tort law” or adoption of “hastily-drawn ‘bright line’ distinction[s]”); Gain v. Carroll Mill Co., 114 Wash. 2d 254, 260-61, 787 P.2d 553 (1990) (applied foreseeability analysis similar to that set forth in Dillon, with exception that court requires physical presence at *44scene of accident or arrival shortly thereafter); Contreras v. Carbon County School District 1, 843 P.2d 589, 594 (Wyo. 1992) (rejected Thing in favor of “broader immediacy rule, which allows the plaintiff to recover if she observes the injury shortly after it occurs without material change in the attendant circumstances”).

Although we discussed Dillon at length in both Amodio and Maloney, in neither case did the factual scenario present the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress. Central to this court’s concern in Amodio and Maloney was that “the etiology of emotional disturbance is usually not readily apparent as that of a broken bone following an automobile accident . . . .” Maloney v. Conroy, supra, 208 Conn. 397. The problem is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged. For this precise reason most courts have recognized that a cause of action for bystander emotional distress must be confined in order to avoid limitless liability. “Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened.” Portee v. Jaffee, 84 N.J. 88, 99, 417 A.2d 521 (1980).

C

This case affords us with an opportunity to reexamine this court’s holding in Strazza in light of Amodio and Maloney and the law regarding bystander emotional distress that has developed over the last four decades. Strazza did not provide this court with an analysis for rejecting bystander emotional distress; rather, the court relied on the state of the law in other jurisdictions at that time in arriving at its conclusion.

*45Our first inquiry is to determine whether a tortfeasor may owe a legal duty to a bystander. “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, *46this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Citations omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).

We believe the time is ripe to recognize a cause of action for bystander emotional distress. Under certain circumstances, which are hereinafter delineated, we conclude that a tortfeasor may owe a legal duty to a bystander. Consequently, a tortfeasor who breaches that duty through negligent conduct may be liable for a bystander’s emotional distress proximately caused by that conduct. Accordingly, we now overrule Strazza to the extent that it conflicts with our opinion in this case.

We first conclude, as indicated below with respect to our justification for adopting the reasonable foreseeability theory, that bystander emotional distress is reasonably foreseeable. We further conclude that public policy requires that we recognize this duty owed by a tortfeasor to a bystander. See Bohan v. Last, 236 Conn. 670, 678, 236 A.2d 670 (1996) (change in public policy guided this court in recognizing cause of action against purveyors of alcohol to minors at bar who subsequently cause injury to innocent third parties). In drawing this conclusion, we have carefully weighed various public policy factors, including social and financial costs associated with recognizing this cause of action. We concur with the statement of the New Jersey Supreme Court that “the interest in personal emotional stability is worthy of legal protection against unreasonable conduct. The emotional harm following the perception of the *47death or serious injury to a loved one is just as foreseeable as the injury itself, for few persons travel through life alone. Ultimately we must decide whether protecting these emotional interests outweighs an interest against burdening freedom of conduct by imposing a new species of negligence liability. We believe that the interest in emotional stability we have described is sufficiently important to warrant this protection. At the same time we are confident that limiting judicial redress to harm inflicted on intimate emotional bonds by the death or serious injury of a loved one serves to prevent liability from exceeding the culpability of [a] defendant’s conduct.” Portee v. Jaffee, supra, 84 N.J. 101.

In recognizing this cause of action, we adopt the “reasonable foreseeability” rule subject to the conditions set forth in this opinion. We do so for two principal reasons. First, an important consideration in determining whether a duty exists under our law of negligence has been the rule of foreseeability. RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385-86. We have long held that the “ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injuiy which resulted was foreseeable, but the test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Citations omitted; internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981). On the basis of this concept of foreseeability, we concluded more than fifty years ago that it is “well within the logic of the law that where results which are regarded as proper elements of recovery as a consequence of physical injuiy are caused by fright or nervous shock due *48to negligence, recovery should be permitted.” Orlo v. Connecticut Co., supra, 128 Conn. 238. Although in Orlo the plaintiff sought damages as a result of being fearful for his own safety, the sight of a loved one being injured can result in an emotional injury that is no less foreseeable than that experienced as the fear of injury to oneself. “Thus, we see no good reason why the general rules of tort law, including concepts of negligence, proximate cause and foreseeability, long applied to all other types of injury, should not govern . . . .” Dillon v. Legg, supra, 68 Cal. 2d 746.

Second, although the zone of danger test has an inherent limitation on liability that is relatively easy to determine, application of that doctrine could result in anomalous situations. For example, varying the factual allegations of this case slightly, assume that Clohessy stayed behind on the steps of the church watching her children, Brendan and Liam, proceed to cross Hillhouse Avenue, when Brendan was struck by the automobile being driven by the defendant. In that situation, Liam could recover, because he was in the zone of danger with his brother, but Clohessy could not. Her emotional trauma, however, would not be any less. Such was the situation in Dillon, wherein the court responded: “In the first place, we can hardly justify relief to the [sibling] for trauma which she suffered upon apprehension of the child’s death and yet deny it to the mother merely because of a happenstance that the [sibling] was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone-of-danger rule.” Id., 733. Recognizing this artificiality, the Supreme Court of Pennsylvania in Sinn v. Burd,