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04/09/90 JOYCE L. WILLIAMS v. MARK D. BAKER

April 9, 1990

JOYCE L. WILLIAMS, ET AL., APPELLANT
v.
MARK D. BAKER, ET AL., APPELLEE



Appeal from the Superior Court of the District of Columbia, On Rehearing En Banc; Hon. Nicholas S. Nunzio, Trial Judge

Before Rogers, *fn1 Chief Judge, Newman, Ferren, Belson, Terry, Steadman, and Schwelb, Associate Judges, and Reilly, Pryor, *fn2 and Mack, *fn3 Senior Judges.

The opinion of the court was delivered by: Belson

Opinion for the court by Associate Judge BELSON.

Opinion Concurring in the result by Senior Judge REILLY.

Opinion Concurring in part and Dissenting in part by Associate Judge FERREN, with whom NEWMAN, Associate Judge, and MACK, Senior Judge, join.

BELSON, Associate Judge: The issue on appeal is whether a mother can recover for emotional distress caused by witnessing her child suffer from negligently inflicted harm if the mother did not reasonably fear for her own safety as a result of the negligent conduct. We hold that she cannot.

I.

Appellant Joyce Williams brought her three-year-old son, Keith Graham, to the emergency room of the Children's Hospital National Medical Center. Keith was suffering from malaise, sore throat, gagging, and a high fever. Keith was examined by Mark Baker, M.D., who diagnosed the child as suffering from a minor virus. Dr. Baker prescribed certain medications and released Keith to his mother's care.

Late that evening, Keith experienced a coughing spell that appeared to lead to a stoppage of breathing. Keith collapsed to the floor unconscious. He was taken by ambulance to Capitol Hill Hospital, where he was diagnosed as having acute epiglottitis, an inflammation of the lid-like structure overhanging the entrance to the larynx. He was treated with emergency intubation and medication, and was transferred to Children's Hospital in critical condition. Keith remained in intensive care for thirty-six hours and was hospitalized for ten days. Ms. Williams stayed with her son during the entire episode.

Ms. Williams, on her own behalf and on behalf of her son, filed a complaint against Dr. Baker and Children's Hospital "for damages for medical malpractice and negligent infliction of mental distress." The complaint alleges, among other things, that Dr. Baker was negligent in failing to diagnose correctly Keith's medical condition, thereby causing Ms. Williams severe mental distress. Ms. Williams claims that she suffered extreme anxiety from the time her son stopped breathing through his subsequent hospitalization; that she could not eat or sleep for several days after the incident; that for several months thereafter she suffered from bouts of sleeplessness, severe stomach problems, nausea and diarrhea; that she continues to worry about the possibility of brain damage to her child; and that she has been under the care of a psychiatrist.

A division of this court affirmed the trial court's order granting summary judgment on the mother's claim in favor of appellees. *fn4 Williams v. Baker, 540 A.2d 449 (D.C. 1988) (vacated, June 21, 1988, Order). The division's ruling was based on the established rule in this jurisdiction *fn5 that there can be no recovery for negligently caused emotional distress unless the negligence caused contemporaneous and direct physical injury. *fn6 See Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187, 1188 (D.C. 1986); Washington and Georgetown R.R. v. Dashiell, 7 App. D.C. 507, 514-15 (1896); Perry v. Capital Traction Co., 59 App. D.C. 42, 43, 32 F.2d 938, 939, cert. denied, 280 U.S. 577, 74 L. Ed. 627, 50 S. Ct. 31 (1929). On rehearing en banc, we abandon the requirement that to be compensable the emotional distress must be traceable to physical injury caused directly by defendant's negligence, but decline to adopt the much broader foreseeability of risk rule. We hold that one may recover for emotional distress caused by witnessing injury to an immediate family member only if the claimant was in the zone of physical danger and as a result feared for his or her own safety. We will explain why we adopt this rule for the District of Columbia, and then apply it to appellant's claim.

II.

It is still unthinkable that any one shall be liable to the end of time for all of the results that follow in endless sequence from his single act. Causation cannot be the answer; in a very real sense the consequences of an act go forward to eternity, and back to the beginning of the world.

Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 24 (1953).

It is fundamental in tort law that one can be held liable for negligence only if there was a duty, breach of that duty, and injury proximately caused by the breach. The existence of a duty, however, results ultimately from policy decisions made by the courts and the legislatures. See generally id.

The problem before us in this case is two-tiered. Before we address the question of whether one may recover for emotional injury resulting from observing physical harm to a third party, we must first determine the basis of liability in this jurisdiction for the negligent infliction of mental distress.

This jurisdiction has long followed the rule that there can be no recovery for negligently inflicted mental suffering that is not traceable to a direct physical injury. See Washington and Georgetown R.R. v. Dashiell, supra, 7 App. D.C. at 514-15; Perry v. Capital Traction Co., supra, 59 App. D.C. at 43, 32 F.2d at 939; Parrish v. United States, 123 U.S. App. D.C. 149, 150, 357 F.2d 828, 829 (1966). It has not been a sufficient predicate for recovery for emotional harm in this jurisdiction that a plaintiff show merely that the defendant's negligence resulted directly in some sort of physical impact or physical trauma to the plaintiff's person, and caused emotional injury as well. Rather the emotional injury must flow from direct physical injury. See Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187, 1189 and n.1 (D.C. 1986). Thus, the approach adopted by this jurisdiction has been more stringent than that imposed by the so-called "impact rule" *fn8 which is discussed below.

This jurisdiction's requirement that to be compensable mental suffering must flow from physical injury is consistent with the historic reluctance of the common law to allow recovery for mental distress other than as an element of damages when an independent tort is established. Indeed, the common law did not impose a duty to guard against causing mental distress to others. It was thought that mental consequences are "so evanescent, intangible, and peculiar, and vary to such an extent with the individual concerned, that they cannot be anticipated, and so lie outside the boundaries of any reasonable 'proximate' connection with the act of the defendant." PROSSER AND KEETON, THE LAW OF TORTS § 12, at 55 (5th ed. 1984). In Clark v. Associated Retail Credit Men, the then highest court of this jurisdiction expressed the policy that prevailed as follows:

The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. 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.

70 App. D.C. 183, 185, 105 F.2d 62, 64 (1939).

Turning from applications within the existing District of Columbia rule to situations in which the physical injury complained of resulted not directly from the negligent act but rather from the operation within the victim of the shock or fright occasioned by the negligent act, we understate the matter when we observe that there has been sharp disagreement among other jurisdictions on the circumstances in which recovery should be allowed. See generally PROSSER AND KEETON, supra, § 54, at 363; Annotation, Right to recover for emotional disturbance or its physical consequences, in the absence of impact or other actionable wrong, 64 A.L.R.2d 100, 126, 143 (1959), and cases cited therein; Note, Injuries from Fright without Contact, 15 Clev.-Mar. L. Rev. 331 (1966).

Many American cases followed the rule laid out in the English case of Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222 (P.C. 1888), that there could be no recovery for the physical consequences of fright unless the original negligent act had caused direct and contemporaneous physical injury. *fn9 See, e.g., Ewing v. Pittsburgh, C. C. & St. L. Ry., 147 Pa. St. 40, 23 A. 340 (1892), overruled by Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Mitchell v. Rochester Ry., 151 N.Y. 107, 45 N.E. 354 (1896), overruled by Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219, 219 N.Y.S.2d 34 N.Y.S.2d (1961); Spade v. Lynn & B.R.R., 168 Mass. 285, 47 N.E. 88 (1897), overruled by Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978). This so-called impact rule has a three-fold rationale: that if there can be no recovery for mere fright, then there can be no recovery for the physical consequences of fright; that it is difficult to determine causation between the negligent act and the alleged physical consequences of mental disturbance, and it is not foreseeable that serious consequences will result from mere mental disturbance; and that the physical impact provides a guarantee that the mental disturbance is not fabricated, thereby preventing a flood of litigation. *fn10 See Mitchell, supra, 151 N.Y. at 109-110, 45 N.E. at 354-55; Spade v. Lynn & B.R.R., supra, 168 Mass. at 290, 47 N.E. at 89; Robb v. Pennsylvania R.R., 58 Del. 454, 459-60, 210 A.2d 709, 712 (1965). In Spade, decided in 1897, the Supreme Judicial Court of Massachusetts stated:

We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard ...


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