87 Wn.2d 424, MARIE HUNSLEY, Appellant, v. KENNETH GIARD, ET AL, Respondents
[No. 43681. En Banc. Supreme Court August 19, 1976.]
MARIE HUNSLEY, Appellant, v. KENNETH GIARD, ET AL,
Respondents.

6. Mental distress resulting from witnessing harm to another led to divided results. See, e.g., Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968); Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968).

7. Mental distress alone, without accompanying physical injury or physical consequences, or any other independent basis for tort liability, generally led to no recovery. W. Prosser, supra § 54, at 328.

See generally W. Prosser, supra § 54; Smith, Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va. L. Rev. 193 (1944).

Analysis of the English cases begins with the Privy Council decision in Victorian Rys. Comm'rs v. Coultas, [1888] 13 A. C. 222 (P.C.) (Austl.). There the husband and wife were riding in a buggy which approached a railroad crossing. The gatekeeper lifted the gate despite the imminent passage of a rapidly moving train which narrowly missed the buggy. The plaintiff wife fainted, resulting in physical symptoms of injury. In denying recovery, the court held: (1) that the damages were not a consequence which in the ordinary course of things would flow from the negligence (presumably foreseeability); (2) that the damages were too remote; (3) that there would be great difficulty of proof; (4) that it would open a wide field for imaginary claims; and (5) that there was no English precedent for

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recovery. The court did not decide whether an actual impact was necessary.

Soon thereafter the remoteness premise was rejected in Bell v. Great Northern Ry. of Ireland, 26 L.R. Ir. 428, 442 (1890). The court reasoned that as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence cause fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be "a consequence which, in the ordinary course of things would flow from the" negligence, unless such injury "accompany such negligence in point of time."

Next to reject the Coultas reasoning was Dulieu v. White & Sons, 2 K.B. 669 (1901), where the pregnant plaintiff was behind the bar of her husband's pub when the defendant servant drove a pair-horse van thereinto. This event caused plaintiff severe shock and illness and was the cause of the premature birth of her child. The court held that the requirement of physical impact was unreasonable and found the remoteness of damage argument unpersuasive. The court focused rather upon the question of proof of the physical injury as a direct and natural effect of the nervous shock. Subsequent resolution of the pertinent issues in the English cases is discussed in R. Heuston, Salmond on the Law of Torts § 77, at 270-75 (15th ed. 1969); R. Percy, Charlesworth on Negligence §§ 33-41, at 19-27 (5th ed. 1971). The latter summarizes the English current rules thusly:

1. When there is a breach of the duty to take care, the damage may take the form of a shock without a direct physical impact. 2. Reasonable fear of immediate physical injury to the plaintiff himself resulting in a shock is actionable. 3. Reasonable fear of immediate physical injury to the plaintiff's family, or to his friends, or, doubtfully, to third parties, resulting in a shock is actionable. 4. The sight of an accident causing physical injury to

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the plaintiff's family, or to his friends, or, doubtfully, to third parties, resulting in a shock is actionable. 5. Hearing the noise of an accident causing physical injury to human beings resulting in a shock is by itself not actionable. 6. The sight of physical injury caused otherwise than to a human being, e.g. to a corpse, to an animal or to property, resulting in a shock is not actionable. 7. A report by a third party that physical injury to a member of the plaintiff's family has been caused by the defendant's negligence, resulting in a shock, is not actionable, unless such intervening act by the third party was reasonable in the circumstances or to be expected. (Footnotes omitted.) R. Percy, Charlesworth on Negligence § 41, at 26, 27.

Interestingly, there are statutes in some British Commonwealths dealing with the matter. New Zealand Law Reform Act 1944, section 2. New South Wales Law Reform (Misc. Provisions) Act 1944, part 3, section 4(1).

The American jurisdictions quickly developed conflicting lines of authorities. An early leading case denying liability was Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896). In Mitchell, recovery was denied to the plaintiff, a pregnant woman who, although not physically touched, was negligently caused to abort her child and suffered a consequent illness. Plaintiff was frightened by defendant's horse-drawn car which was being operated in such a reckless manner that, when finally restrained, the plaintiff was trapped between the heads of the horses. Three reasons were given by the court for dismissing plaintiff's complaint. First, since the plaintiff could not recover for mere fright, there could be no recovery of damages for the consequences resulting therefrom. Second, the court assumed that the miscarriage was not the natural and probable consequence of defendant's negligence, but rather was due to an unusual combination of circumstances not reasonably foreseeable and, therefore, too remote to justify recovery. Third, the court reasoned that recovery would be contrary to public policy because the type of injury could be feigned

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without detection and would result in a flood of fictitious and speculative claims.

The Mitchell rule survived in New York until 1961 when it was overruled in Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d729 (1961).

An opposite view was taken in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), where an assault in the presence of the plaintiff caused her fright which produced a miscarriage. In allowing recovery the court said at page 215:

That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation in an action at law when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we can not say that a recovery should not be had.

For a history of the development of the law in the American jurisdictions and analysis of the problems encountered by the courts see Brody, Negligently Inflicted Psychic Injuries: A Return to Reason, 7 Vill. L. Rev. 232 (1961-62); Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. L. Rev. 497 (1922); Harper & McNeely, A Re-examination of the Basis for Liability for Emotional Distress, 1938 Wis. L. Rev. 426; Lambert, Tort Liability for Psychic Injuries, 41 Boston U. L. Rev. 584 (1961); Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033 (1936); Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260 (1921); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Ga. L.J. 1237 (1971); Note, 76 W. Va. L. Rev. 176 (1974).

From early in its history, this court has allowed recovery of damages for mental distress, even without physical impact or injury, when the defendant's act was willful or intentional. See Willson v. Northern Pac. R.R., 5 Wash. 621,

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32 P. 468 (1893); Davis v. Tacoma R. & Power Co., 35 Wash. 203, 77 P. 209 (1904); McClure v. Campbell, 42 Wash. 252, 84 P. 825 (1906); Wright v. Beardsley, 46 Wash. 16, 89 P. 172 (1907); and Nordgren v. Lawrence, 74 Wash. 305, 133 P. 436 (1913).

Where the defendant's actions were negligent and there was no impact to the plaintiff, our cases initially adopted the then general rule of no liability for mental distress. See Corcoran v. Postal Telegraph-Cable Co., 80 Wash. 570, 142 P. 29 (1914); Kneass v. Cremation Soc'y, 103 Wash. 521, 175 P. 172, 10 A.L.R. 442 (1918); Barnes v. Bickle, 111 Wash. 133, 189 P. 998 (1920); Stiles v. Pantages Theatre Co., 152 Wash. 626, 279 P. 112 (1929).

A departure from the impact rule was first recognized in O'Meara v. Russell, 90 Wash. 557, 156 P. 550 (1916). In O'Meara, the defendant was blasting stumps near the plaintiff's home. In the process of blasting, a stump was dislodged and hurled through the air into plaintiff's house. The plaintiff was standing in the house at the time and saw the stump coming toward her, and saw it strike the house a few feet from her head. In an effort to protect herself and escape the threatened danger she sustained direct physical injury. Recovery was premised upon the fact that the defendant's act, which caused the fright, reasonably induced action which resulted in an external injury. In allowing recovery, the court relied heavily upon the existence of physical injuries.

In this case the injuries resulting from the fright were physical injuries. They were not psychological or mental.

It seems, under these circumstances, where there is physical injury which results naturally, that the injured person is entitled to recover equally as though there had been a direct impact which caused the same injury. O'Meara v. Russell, supra at 563.

This departure from the impact rule was further refined in Frazee v. Western Dairy Prods., 182 Wash. 578, 47 P.2d 1037 (1935). In Frazee, the pregnant plaintiff was sitting in her living room when she observed a runaway truck coming toward her house. Her young son was in the yard. She

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testified to her alarm as to the safety of her son and the fear that the truck would strike her house and possibly set it on fire. The truck overturned in the yard but did not reach the house. Plaintiff ultimately suffered a miscarriage. Recovery was allowed because, like the O'Meara case, the facts constituted a threat of an immediate physical invasion of the plaintiff's personal security.

Thus, this court adopted a zone of danger rationale rather than requiring an actual physical impact. Murphy v. Tacoma, 60 Wn.2d 603, 620-21, 374 P.2d 976 (1962), summarized the Washington rules:

[G]enerally, in cases which do not involve malice or intent to do harm, there must be either an immediate physical invasion of the plaintiff's person or security, or a direct possibility of such an invasion in order that recovery may be had for mental anguish or distress of mind. The rule is simply a rule of thumb. At times our cases have deviated from the rule "either in [their] reasoning or on the facts" in allowing recovery. Murphy v. Tacoma, supra at 621. In Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), we indicated our willingness, in the appropriate case, to reexamine the rule and its application.

In the main, the reasons advanced by the courts for denying recovery, i.e., lack of precedent, increased litigation, remoteness, and fear of fictitious and feigned claims, have now been generally discarded. See Lambert, Tort Liability for Psychic Injuries, 41 Boston U. L. Rev. 584 (1961); Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260 (1934); Schurk v. Christensen, supra at 658 (Finley, J., dissenting). The old rationales are simply no longer viable. In light of this, we consider this to be the case to reexamine the question of liability for the negligent infliction of mental distress.

We emphasize that this case does not involve mental distress alone. Our decision necessarily is predicated upon the existence of physical symptoms evidencing and resulting from the emotional distress. We say that this is necessarily so because these are the facts of this case. Plaintiff

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suffered physical heart damage as well as emotional distress. Whether there is liability for emotional distress unmanifested by any physical symptoms must be determined in another case.

It is apparent from a survey of this area of the law that the application of the various rules, their exceptions and aberrations, has led the courts to reach absurd results and created numerous artifical boundaries. See generally W. Prosser, supra § 54. Rather than add to the already existing confusion with the formulation of a new rule, we conclude that the wisest approach is to return to the traditional principles, theories, and standards of tort law. Thus we test the plaintiff's negligence claim against the established concepts of duty, breach, proximate cause, and damage or injury.

[1] Not every act which causes harm results in legal liability. For various reasons, often unarticulated, the courts have placed limitations on liability. The most common vehicle for circumscribing the boundaries of liability has been the court's definition of duty, applicable to particular facts. The bald conclusion that there is or is not a duty falls short of the necessary analytical mark. Dean Prosser puts it well:

There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: the hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that

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will be practical and in keeping with the general understanding of mankind." (Footnotes omitted.) W. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953). See Green, The Duty Problem in Negligence Cases, 28 Colum. L. Rev. 1014 (1928), and 29 Colum. L. Rev. 255 (1929); Symmons, The Duty of Care in Negligence: Recently Expressed Policy Elements, 34 Modern L. Rev. 394 (1971).

Essentially we are balancing the interest of the injured party to compensation against the view that a negligent act should have some end to its legal consequences.

[2,3] Balancing those interests and subject to the limitations hereafter set forth, we conclude that the plaintiff who suffers mental distress has a cause of action; that is to say, the defendant has a duty to avoid the negligent infliction of mental distress. It is not necessary that there be any physical impact or the threat of an immediate physical invasion of the plaintiff's personal security. Our experience tells us that mental distress is a fact of life. With adequate limitations, the courts can administer the adjudication of this tort just as it does the complex intricacies of products liability and medical malpractice.

What are the confines of the defendant's liability? The very concept of negligence provides the primary boundaries.

Negligence . . . is conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. If the defendant could not reasonably foresee any injury as the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence, and no liability. (Footnote omitted.) W. Prosser, Handbook of the Law of Torts § 43, at 250 (4th ed. 1971). See Campbell, Duty, Fault and Legal Cause, 1938 Wis. L. Rev. 402.

The element of foreseeability plays a large part in determining the scope of defendant's duty. Wells v. Vancouver,