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05/04/93 LENA B. SOWELL AND PERLOW SOWELL v. HYATT

DISTRICT OF COLUMBIA COURT OF APPEALS


May 4, 1993

LENA B. SOWELL AND PERLOW SOWELL, APPELLANTS
v.
HYATT CORPORATION, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. von Kann, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Sullivan, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellants Lena Sowell and Perlow Sowell appeal from the grant of summary judgment on the ground that the trial Judge erred as a matter of law in ruling that a plaintiff must show, in order to recover for emotional distress and resulting physical injury caused by a defendant's negligence and breach of warranty, that the distress was caused by a direct physical impact. We reverse.

I.

On October 16, 1990, Lena B. Sowell and Perlow Sowell filed a complaint against the Hyatt Corporation alleging negligence and breach of warranty, for which they sought compensatory damages of $75,000, and loss of consortium as a result of an incident that occurred on November 4, 1988, when Lena Sowell had lunch at a restaurant in the Hyatt Regency Hotel. When she had nearly finished her lunch, she noticed what she claimed was a worm in a spoonful of rice that she was about to eat, and told her luncheon companions "I almost put a worm in my mouth from the rice." She was unable to say whether she had actually eaten any worms or portions of worms during her lunch, implying that although she did not eat the worm she saw on her spoon, there may have been other worms in the food she had already eaten. Mrs. Sowell vomited repeatedly shortly thereafter, and was treated by a doctor who prescribed some medication for her, and the following day put her under general anesthesia to examine her throat. The doctor, upon examination of Mrs. Sowell's throat, diagnosed "an esophageal tear." *fn1

Appellee moved for summary judgment on the ground that the Sowells were barred from recovering damages solely for psychological reactions to foreign matter in food where Mrs. Sowell "sees, but does not consume, unwholesome food." Appellee maintained that under District of Columbia case law, a plaintiff was required to show a causal connection between consumption of the foreign matter and the alleged injuries, and that in the absence of any consumption there could be no such causal relation. n.2 [Footnote Omitted] In appellee's opinion, Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc), was factually distinguishable and based on a different legal theory of liability, namely negligent infliction of emotional distress, and left standing the decisions in Hamilton v. Pepsi Cola Bottling Co. of Washington, supra note 2, 132 A.2d at 503; Campbell v. Safeway Stores, Inc., supra note 2, 149 A.2d at 422; Harrison v. Canada Dry Corp., supra note 2, 245 A.2d at 643; and Gilper v. Kiamesha Concord Inc., supra note 2, 302 A.2d at 745. The Sowells opposed the motion on the ground that because the en banc court had abandoned the physical impact rule and adopted a zone of danger rule in Williams v. Baker, supra, 572 A.2d at 1067, the court had clearly eliminated the requirement that emotional or psychological distress flow from a physical injury. Further, the Sowells maintained that Mrs. Sowell was "directly involved in a tortious act" by appellee and there was nothing in that decision to suggest that adoption of the zone of danger rule was intended to be limited to emotional or psychological distress occasioned by witnessing harm to a third person. Finally, the Sowells pointed out that the physical manifestations and actual physical injury "clearly bring[] this case within that class of cases where the 'serious' and 'verifiable' nature of the emotional and psychological reaction eliminates the need for the proximate causation limitation designed to protect against feigned or trivial claims." The trial Judge summarily denied the motion by order on September 25, 1991. *fn3

II.

On appeal the Sowells contend that the trial Judge erred in granting summary judgment to appellee in light of the holding and analysis by the en banc court in Williams v. Baker, supra, 572 A.2d 1062. *fn4 Mrs. Sowell admitted that she did not eat the worm she saw, and therefore, appellee maintains, she could not show the required physical impact. Appellees rely on a series of decisions by this court prior to Williams v. Baker, holding that plaintiffs who saw foreign objects in their food could recover if their subsequent illnesses were caused by eating the foreign objects, but not if the illnesses were caused by psychological reactions to seeing the foreign objects. See note 2, (supra) . *fn5 Our analysis is somewhat different.

First, the Sowells' complaint alleges that Mrs. Sowell "was served deleterious and unwholesome food by agents of the " since the food was not free from foreign matter. To the extent that she had consumed food in which a worm had been found, Mrs. Sowell could show direct physical impact under pre- Williams v. Baker decisions. See Gilper v. Kiamesha Concord, Inc., (supra) note 2, 302 A.2d at 745 (presence of roach in salad is some evidence that salad plaintiff ate may have been tainted); cf. Campbell v. Safeway Stores, Inc., supra note 2, 149 A.2d at 422 (cheese with fly embedded in it was not wholesome food). Mrs. Sowell's claim that she saw a worm also could give rise to an inference that the rice contained other worms which Mrs. Sowell unknowingly consumed. One could infer, viewing the pleadings most favorably to the Sowells, that Mrs. Sowell's illness and esophageal tear were physically caused by ingesting contaminated food. See Gilper v. Kiamesha Concord, Inc., supra note 2, 302 A.2d at 745-46 (jury question); Harrison v. Canada Dry Corp., supra note 2, 245 A.2d at 642-43; *fn6 Hamilton v. Pepsi Cola Bottling Co., supra note 2, 132 A.2d at 503-04.

Thus, the only question is whether the Sowells could also recover damages for injuries caused as a result of Mrs. Sowell seeing the worm in her rice. The holding and analysis in Williams v. Baker, supra, make clear that the en banc court overruled the line of cases on which appellee relies, see note 2, (supra) , insofar as they required plaintiffs to show direct physical impact as distinct from physical endangerment. Williams v. Baker, supra, 572 A.2d at 1064, 1066-67; see also Jones v. Howard University, Inc., 589 A.2d 419, 421 (D.C. 1991); Williams v. U.S. Elevator Corp., 287 U.S. App. D.C. 225, 228, 920 F.2d 1019, 1022 (1990) (applying D.C. law). In fact, the court in Williams v. Baker cited Hamilton v. Pepsi Cola Bottling Co., supra note 2, and Gilper v. Kiamesha Concord, Inc., supra note 2, in a footnote as examples of longstanding law of the District, which the court then explicitly rejected. Williams v. Baker, supra, 572 A.2d at 1066-67 & n. 11. *fn7

The en banc court has decided that a plaintiff need not show that an actual physical impact occurred in order to recover for negligently caused emotional distress. The court stated that "the tortfeasor owes a duty of care to all persons who are physically endangered by the tortfeasor's negligent act, regardless of whether actual impact occurs." Williams v. Baker, supra, 572 A.2d at 1067. Rejecting the actual physical impact test, the court adopted a zone of danger approach. In so doing the court stated that:

if the plaintiff was in the zone of physical danger and was caused by defendant's negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether plaintiff experienced a physical impact as a direct result of defendant's negligence.

Id. at 1067.

Although the issue arose in the context of a claim for the negligent infliction of emotional distress caused by harm to a third person, the en banc court in Williams v. Baker made a general statement about the requirements for recovery for emotional harm and resultant physical injury caused by a defendant's negligence. *fn8 Id. at 1064-68. This standard applies in the instant case even though the Sowells sue for negligence and breach of warranty rather than negligent infliction of emotional distress. Negligent infliction of emotional distress is a type of negligence, and there is no distinction between the law applicable to claims for negligence and breach of warranty where both are based on an "alleged injury caused by consumption of unwholesome ." Harrison v. Canada Dry Corp., supra note 2, 245 A.2d at 643. There is nothing in the analysis of the decisions on which appellee relies to suggest that the court was applying anything other than a very restrictive physical impact rule, *fn9 and that rule was rejected in Williams v. Baker, supra, 572 at 1067. Consequently, it would be ironic if, after Williams v. Baker, a plaintiff could recover for injuries caused by observing injuries to a third person but could not recover in the absence of a direct physical impact for injuries caused to the plaintiff herself as a result of the defendant's negligence. Cf. District of Columbia v. McNeil, 613 A.2d 940, 943 (D.C. 1992) (recovery for physical and emotional injuries caused by negligent mismanagement of pregnancy since plaintiff "is 'physically endangered' as a result of the defendant's negligence").

Appellee also notes that the en banc court in Williams v. Baker declined to comment on circumstances in which a plaintiff does not show physical injury caused by emotional distress. See Williams v. Baker, supra, 572 A.2d at 1067. However, the court has subsequently stated that a plaintiff may recover in the absence of a physical injury if the emotional harm is "serious" and "verifiable." Jones v. Howard University, Inc., supra, 589 A.2d at 424. Mrs. Sowell has alleged physical injury in the form of an esophageal tear, and, hence, as she argued in the trial court, concern about feigned or trivial claims is not present. See Jones v. Howard University, Inc., supra, 589 A.2d at 424 (citations omitted).

To the extent that Williams v. Baker, supra, is confined to situations in which someone is physically endangered, cf. Cauman v. George Washington University, 1993 D.C. App. LEXIS 70, No. 91-CV-710, slip. op. at 7-8 (Jan. 29, 1993) (in absence of claim that defendant's conduct injured anyone or physically endangered plaintiff, trial court properly dismissed complaint for failure to state a claim upon which relief could be granted), summary judgment was still inappropriate. While appellee does not appear to take issue with the legal analysis that would apply under a Williams v. Baker analysis, it is clear that Mrs. Sowell was in the zone of physical danger. *fn10 Viewing, as we must, all inferences in the light most favorable to the non-moving party, see note 4, (supra) , the record shows that Mrs. Sowell was bringing the worm towards her mouth, had already eaten most of her lunch, and was afraid that the rice had contained other worms which she had already eaten without noticing them, and further, that she might become ill and even aggravate her previous stomach surgery. Eating contaminated food is evidence of physical endangerment. See Gilper v. Kiamesha Concord, Inc., supra note 2, 302 A.2d at 745; Campbell v. Safeway Stores, Inc., supra note 2, 149 A.2d at 422. The District of Columbia's Food and Food Operations regulations recognize and are designed to protect against the possibility of physical endangerment by reason of adverse effect on one's health from consumption of contaminated food. *fn11 Fear of contaminated food hitting one's stomach is, like fear of being hit by a truck, a fear for one's physical safety. Thus, after Williams v. Baker, supra, the Sowells could sue to recover not only for injuries as a result of the contaminated rice consumed by Mrs. Sowell but also for injuries arising from her reaction to the worm she saw in the rice, because seeing the worm caused Mrs. Sowell to fear that she had eaten contaminated food, which was a fear for her physical safety. Contra Harrison v. Canada Dry Corporation, supra note 2, 245 A.2d at 643; Hamilton v. Pepsi Cola Bottling Co., supra note 2, 132 A.2d 500. The seriousness of the harm feared is, of course, a matter to be addressed in evaluating damages and is not the court's function on summary judgment, where a non-moving party need only show that there is a dispute as to material facts or that the moving party is not entitled to judgment as a matter of law.

Accordingly, we reverse the grant of summary judgment to appellee, and remand the case to the trial court for further proceedings on all counts.


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