D'AMBRA v. UNITED STATES

DORIS, J.

This case comes to us from the First Circuit Court of Appeals pursuant to Sup. Ct. R. 6 which prescribes a procedure for the certification of questions of law from the Federal Courts to this court. The action was originally brought in Federal District Court of Rhode Island under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1958). Constance C. D'Ambra and her husband Joseph A. D'Ambra sued to recover for physical and emotional injuries suffered by the plaintiff-wife and for losses incurred by the plaintiff-husband, both caused by Mrs. D'Ambra's witnessing her 4-year-old son, Gregory A. D'Ambra, being struck and killed by a United States mail truck.

The factual basis of the case presently before us was settled in Joseph A. D'Ambra v. United States, C.A. No. 4545 (D.R.I., March 17, 1972), where the District Court in an unreported opinion, determined that the driver of the mail truck was negligent, and that both Gregory A. D'Ambra and his mother, a witness to the accident and not in any physical danger, were free of contributory negligence. The case was appealed to the First Circuit Court of Appeals, which affirmed the finding of liability. D'Ambra v. United States, No. 72-1205 (1st Cir. October 24, 1972).

On the basis of the facts found in this earlier action, defendant moved under Fed. R. Civ. P. 12(b) (6) to dismiss the instant case for failure to state a cause of action. The District Court denied defendant's motion, holding that under the laws of Rhode Island, a mother who witnesses her child's death as a result of defendant's negligence, has a cause of action for negligent infliction of emotional distress if her presence at the scene of the accident is foreseeable to defendant.

The defendant has appealed this decision to the First Circuit Court of Appeals, which in turn has certified the following question of law to us:

"May a non-negligent plaintiff mother, who is foreseeably in the vicinity of her minor child but not in the child's zone of danger, recover damages for mental and emotional harm, accompanied by physical symptoms, caused by observing the death of her child resulting exclusively from the negligence of defendant in driving the truck which struck the child, although she suffered no physical impact?"

Even if this question were not one of first impression for this court, the increasing division of opinion among jurisdictions over bystander recovery might well require a re-examination of any position taken previously. As it is, only a few prior Rhode Island cases touch on the problem of a parent's recovery for mental suffering caused by the awareness of injury done to a child.

In McGarr v. National Prov. Worsted Mills, 24 R.I. 447, 53 A. 320 (1902), this court said that in an action brought by a parent for loss of services of his child and medical expenses incurred in caring for the injuries of the child, the jury was not to consider physical or mental pain sustained by the plaintiff parent by reason of injury to the child. For a variety of reasons this case is of limited precedential significance: the case is an old one, brought before Rhode Island allowed recovery for mental injury; the problem of recovery for such injury does not appear to have been extensively argued, if at all; and the holding in the case may well be limited to the particular kind of action brought.

A second case, Bedard v. Notre Dame Hosp., 89 R.I. 195, 151 A.2d 690 (1959), noted that as a general rule parental recovery may not be had for psychic trauma caused by an accident to a child, but did so in the context of a situation involving an intentional tort which the court was anxious to distinguish from McGarr. The statement of law relevant to this case is mere dicta, and again the precise question presently before this court was never briefed, argued, or directly considered.

The only Rhode Island case to seriously consider the problem of negligent infliction of emotional distress did so not in the context of a bystander problem, but in a situation where the plaintiff herself was in danger of serious physical injury. Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907). There the court noted that a severe shock to the nervous system could be as debilitating as any physical impact, and that this effect could well be a direct result of a defendant's negligence. Given these elements of the classical tort, the court concluded that the oft stated problems of practical administration were not sufficient to bar a cause of action where a person was physically endangered by the acts of the defendant, even though no physical impact ever resulted. In Rhode Island the zone of physical danger has continued to be the high water mark of potential liability for negligent infliction of emotional distress. Only a few jurisdictions have pushed these parameters back further to allow bystander recovery. Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968); D'Amicol v. Alvarez Shipping Co., 31 Conn. Sup. 164, 326 A.2d 129 (1973); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974).

If Rhode Island precedent does not present a bar to the extension of potential liability, it is far from providing a source of encouragement for it. Instead this court must approach the instant problem by an application of tort theory, and in so doing examine the underlying issues of policy.

The scope of potential liability commonly finds theoretical expression in such concepts as duty and proximate cause. These are, however, exceedingly elastic notions which, instead of dictating an answer to whether the plaintiff has stated a cause of action against the defendant, merely reformulate the question. They are, indeed, merely reductions of the multi-faceted mores of the community, easily expressible formuli for the core problem of whether the law will countenance a shifting of the burden of loss. As Professor Prosser has noted:

"* * * the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. * * * But it should be recognized that `duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Prosser, Torts § 53 (4th ed. 1971).

Likewise, Justice Andrews, in his famous dissent in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) wrote:

"What we do mean by the word `proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Id. at 352, 162 N.E. at 103.

This court has never definitively committed itself to either of these analytical approaches, see Radigan v. W.J. Halloran Co., 97 R.I. 122, 196 A.2d 160 (1963); nor will it do so here. It is felt, however, that given the nature of the problem, which some courts have viewed as calling for not merely an expansion of old tort concepts but a creation of an entirely new cause of action, the notion of a duty of care running from the defendant to the plaintiff is the more functional approach, as it tends to focus attention on the obligation to be imposed upon the defendant rather than on the causal sequence of events. See Prosser, Torts § 42 (4th ed. 1971); Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1 (1953). At a time when the cost burden of negligently caused injuries is still settled by a private agreement or lawsuit, this emphasis on the relationship between the plaintiff and the defendant has a solid foundation not only in our ideas of moral responsibility, but also in the present structure of the administration of justice.

Whether there exists a duty of care running from the defendant to the plaintiff is, in the first instance, a question for the court and not for the jury. Radigan v. W.J. Halloran Co., supra; Mercurio v. Burrillville Racing Ass'n, 95 R.I. 417, 187 A.2d 665 (1963); Palsgraf v. Long Island R.R., supra; see also 2 Restatement (Second) Torts § 453 (1965); Prosser, Torts § 45 (4th ed. 1971); Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543 (1962). A justice of the New Jersey Supreme Court, writing in Morril v. Morril, 104 N.J.L. 557, 142 A. 337 (1928), put this proposition as follows:

"Hence, it becomes imperative before legal liability for conceded damages can be imposed upon a defendant, for the court in the first instance to inquire and determine the character of duty which the law under the facts imposed upon the defendant as the basis of liability; for manifestly it cannot be conceded that the jury from their inner consciousness may evolve in every variety of tort feasance a legal duty as the standard of liability." Id. at 560-61, 142 A. at 339-40.

Underlying this position is the belief that it is the responsibility of the court to declare what the law is, to consider all the relevant factors, and to decide whether the facts as alleged make out a minimum case for shifting the burden of loss from the plaintiff to the defendant. On the practical side, the multiplicity of factors relevant to a determination of whether the plaintiff has or should have a cause of action, together with the multiple application of such notions as foreseeability in first determining duty and later breach, would all make jury instruction hopelessly complicated and involved. Moreover, jury determination of potential liability, unfettered except by some vague concept such as foreseeability, would rapidly lead to exceedingly uneven parameters of liability.

The concept of the foreseeability is often mentioned as a means to rationalize the scope of a defendant's duty. Given the wide disparity, however, between what courts have found to be "foreseeable" when faced with actual negligence problems, any strong reliance on this concept as a device to distinguish close factual patterns would seem to be misplaced. Moreover, while duty may be a composite of many factors, foreseeability is responsive only to the moral aspects of the issue; it tracks the moral postulate that one must be in a position to be aware of what one is doing before one should be held responsible for it. This is not to say that foreseeability fails as a functional concept in tort law, but only that it should not be pushed beyond its inherent limitations as a conclusion to the question of whether there exists sufficient moral culpability for legal liability to be imposed.

If foreseeability fails as an adequate template for existence of a duty, recourse must be made to the basic issues of policy underlying the core problem of whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. As the Wisconsin Supreme Court in Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935) stated:

"The answer to this question cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the defendant ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain how far defendant's duty and plaintiff's right may justly and expediently be extended." Id. at 613, 258 N.W. at 501.

This court in earlier cases has used a policy analysis in deciding whether the scope of potential liability in tort should be expanded beyond its traditional confines. In the Simone case the court balanced the practical problems of administering the recovery of damages for fright against the recognition that even negligent infliction of emotional distress could directly cause severe physical injury. In Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255 (1971), this court based its decision to adopt the doctrine of strict liability in tort on the reality of present day market conditions. Rejecting the argument that potential liability should be circumscribed by the law of contract, the court stated that, "`[t]he matter is solely one of policy and should be approached without the encumbrance that reference to contract law needlessly imposes.'" Id. at 188, 283 A.2d at 261, quoting with approval Miller v. Preitz, 422 Pa. 383 at 420, 221 A.2d 320 at 339 (1966).

[3, 4] The policy issues relevant to the question before this court are varied in character, but for analytical convenience they may be divided into three basic categories: moral, economic, and administrative. Underlying the moral aspects of the problem is the realization, first enunciated in the Simone case, that physical and psychological injury are inextricably intertwined, and that psychological injury may be as debilitating as any physical injury. See Comment, Negligently Inflicted Emotional Distress: The Case for an Independent Tort, 59 Geo. L.J. 1237 (1970-71). By the terms of the question certified for our consideration, plaintiff in the instant case suffered mental and emotional harm, accompanied by physical symptoms.

Beyond the recognition of the potential seriousness of mental injury, there is a growing awareness that such injury is an increasingly common phenomenon. The modern trend of urbanization and the overall increase in density of population make serious invasion of our psychological security more and more likely. Where there is a widespread need for redress, the judicial system should consider very carefully before it undertakes to reject, as a matter of law, an entire class of claims. Hawaii, in recognizing a cause of action by a bystander for negligent infliction of emotional distress, stated:

"* * * we are faced with a multiplication of psychic stimuli as `society becomes more complex and people are crowded together' and with increasing widespread knowledge of the debilitating effect mental distress may have on an individual's capacity to carry on the functions of life. The force which compels recognition of an element of damages, once parasitic, as an independent basis of liability is social change." Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).

Certainly the law should not compensate for every minor psychic shock incurred in the course of daily living; it should not reinforce the neurotic patterns of society. At some point, however, a person threatened by severe mental injury should be able to enforce his claim to reasonable psychological tranquillity.

By the terms of the certified question there is no doubt but that the negligent action of defendant in fact caused plaintiff's injury. Nor is the sequence of events a multiplication of improbabilities as was the case in Palsgraf v. Long Island R.R., supra. It has often been said that potential liability should not outrun culpability, that is, the risk reasonably to be perceived. Palsgraf v. Long Island R.R., supra at 344, 162 N.E. at 100; D'Ambra v. United States, 354 F. Supp. 810 (D.R.I. 1973). Unfortunately what may be reasonably perceived or foreseen is a matter of some dispute. See Prosser, Torts § 43 (4th ed. 1971). In the instant case, where a mother actually witnessed the death of her child, the resulting mental distress can hardly be deemed so fantastic or freakish as to make imposition of liability a moral outrage. Indeed, Professor Prosser has stated that in such a case, "[a]ll ordinary human feelings are in favor of her action against the negligent defendant." Id. at 334. Whether the mother's injury was foreseeable to defendant or "proximately caused" by his actions is a matter of conclusory definition, not of objectively verifiable fact. Other policy considerations aside, it is enough that such a plaintiff, a mother who witnessed the death of her child, has suffered severe mental and emotional distress, that such distress is not an isolated phenomenon, that it was actually caused by defendant's actions, and that the causal sequence was something less than fantastical.

Viewed from a second perspective, that of economic policy, the question is one of who can best bear the cost of the injury, which in turn may depend on the availability and cost of insurance. While it is perhaps true that insurance is more readily available to the driver than to the bystander-mother, this is not such a case as Ritter v. Narragansett Elec. Co., supra, where the economic aspects of the case were determinative. It is sufficient to note that the policy issues in this area are no bar to an extension of potential liability.

Most attempts to develop a cause of action in a bystander-mother have foundered on the rock of what was perceived to be administrative necessity. While fears of a proliferation of claims may be dismissed as "merely [showing] society's pressing need for legal redress," Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), the problem of fraudulent claims and the related issue of the difficulty of handling fairly injuries of the psyche cannot be ignored. There are obstacles inherent in the rendering of justice on the basis of complex and often conflicting testimony from medical experts, especially where the situation is fraught with emotional appeal. It may be noted, however, that comparable problems of proof have been faced and overcome in the area of intentional torts, see Bedard v. Notre Dame Hosp., supra, and where a plaintiff is suing for psychological injuries resulting from fears for her own safety. See Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907).

"In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims." Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (1961), quoted with approval by Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969); see also Prosser, Torts § 54 (4th ed. 1971); Comment: Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo. L. Rev. 1237 (1970-71).

Furthermore, many courts, including this one, have shown themselves reluctant to bar an entire class of claims with a bright line rule merely for fear that occasionally recovery will be ill-founded. Dillon v. Legg, supra; Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540 (1930); see also Throckmorton, Damages for Fright, 34 Harv. L. Rev. 260 (1921). As this court said in Simone v. Rhode Island Co., supra:

"But when it is admitted * * * that in a large class of cases there may be injuries of the most serious character directly resulting from the negligence of the defendant, as a proximate cause, for which the law will afford no remedy because of some probable difficulty or occasional injustice in the administration of a more liberal rule, it appears to us that the conclusion is quite illogical and is a pitiful confession of incompetence on the part of courts of justice."

The final issue, the one that has most troubled courts and commentators, is the question of how to draw reasonable parameters to the field of legal liability if potential liability is ever to reach beyond the zone of physical danger recognized in the Simone case. Despite the admitted artificiality of linking recovery for mental distress to the possibility of physical injury, this limitation does reflect the core notion of some reasonable relation or nexus between the negligent conduct and the injury sued upon. Moreover, being a rule that is relatively easy to administer, it has the virtue of predictable application. In Dillon v. Legg, supra, the California Supreme Court suggested three factors as being relevant to the scope of potential liability: physical proximity, the actual witnessing of the accident, and the personal relationship existing between the bystander-plaintiff and the victim. The zone of physical danger is a matrix of these first two factors which, although narrowly restricted in scope, covers nearly all the cases in which a bystander may recover for negligent infliction of mental and emotional injury. As such it remains a vital and viable limitation on the field of liability.

There are, however, other factors which, given the right circumstances, may be of major importance in determining whether an adequate relation exists between the defendant's conduct and the plaintiff's injury. Personal relationship may link people together more tightly, if less tangibly, than any mere physical and chronological proximity. Among such relationships, none is closer than that of mother and child. Thus, where a mother witnesses the death of her child, it is only reasonable that the parameters of liability established by the zone of physical danger be bent to accommodate the overwhelming impact of the mother's and child's mental and emotional relationship. Anything less would be to deny psychological reality.

If this relaxation of the zone-of-danger limitation on liability is viewed as the exception and not the rule, we do not find the administrative difficulties posed by bystander recovery to be insurmountable. Nor do we find any bar to an extension of liability in the economic considerations of who may best bear the risk of loss. In these circumstances, where the above external factors are not determinative, where the plaintiff has suffered severe mental and emotional distress actually caused by the defendant's negligent actions, and where this resulting injury was neither an isolated phenomenon in today's world nor the result of a freakish series of events, we feel the plaintiff's injury cannot be said to have been unforeseeable as a matter of law.

Applying the foregoing discussion to the terms of the certified question, we hold that a nonnegligent mother, who although suffering no physical impact suffers serious mental and emotional harm accompanied by physical symptoms from actually witnessing the death of her nonnegligent minor child as a direct result of the defendant's negligence, may maintain an action for negligent infliction of emotional distress, despite the fact that she herself was never in physical danger.