RACHEL E. SCHACK and DYLAN E. SCHACK, Appellants,
v.
STEVEN M. SCHACK, Personal Representative of the Estate of ELIZABETH I. SCHACK, Appellee.
Appeal
from the Superior Court No. 4FA-14-00718 PR of the State of
Alaska, Fourth Judicial District, Fairbanks, Matthew C.
Christian, Judge pro tem.
Ward
Merdes, Merdes Law Office, P.C., Fairbanks, for Appellants.
Cheryl
L. Graves, Farley & Graves, P.C., Anchorage, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
A
family rushed to the scene of a car accident, only to
discover that it had been caused by a family member, who soon
died from her traumatic injuries. The family brought a
bystander claim against the deceased family member's
estate for negligent infliction of emotional distress, making
the novel argument that, even though the family member was
also the tortfeasor, the family could recover for its
resulting emotional distress. The superior court granted
summary judgment in favor of the estate, reasoning that the
family's claim has no basis in current Alaska law. We
affirm the superior court's grant of summary judgment
because the family's claim has no basis in current Alaska
law and fails to satisfy our test for expanding tort
liability.
II.
FACTS AND PROCEEDINGS
The
parties stipulated to the following facts for the purposes of
summary judgment, and, in this appeal, we assume they are
true. In June 2014, Elizabeth Schack was driving and failed
to yield the right-of-way at a stop sign. The driver of an
oncoming truck was unable to stop and collided with the
driver's side of Elizabeth's car. Elizabeth's
mother and brother, Rachel and Dylan Schack, at home around
the corner, heard the impact and rushed to the scene, where
they saw Elizabeth seriously injured as a result of the
crash. As the Schacks watched, Elizabeth was extracted from
the vehicle by emergency responders; she died as a result of
her injuries.
In
February 2015, the Schacks filed a notice of negligent
infliction of emotional distress (NIED) claim[1] against
Elizabeth's estate[2] (the Estate). The notice asserted the
Estate was liable for the emotional distress that the Schacks
experienced as a result of Elizabeth's negligent conduct.
Each family member sought as compensation the liability limit
of Elizabeth's auto insurance policy and the liability
limit of the Estate's personal representative's auto
insurance policy. The Estate filed a notice of disallowance
of the NIED claim on the basis that it was of questionable
legal validity.[3]
The
Schacks then petitioned for allowance of the NIED claim, and
the Estate moved for summary judgment. The Estate contended
that the NIED claim failed as a matter of law because
Alaska's bystander theory of liability does not permit
recovery when the tortfeasor and the injured relative are the
same person. The Schacks opposed the motion and cross-moved
to establish NIED liability by the Estate as a matter of law.
They argued that no case law dictated that Elizabeth's
dual role precluded recovery under an NIED claim. In August
2016, after hearing argument from both parties, the superior
court granted the Estate's motion for summary judgment
and denied the Schacks' cross-motion, reasoning that the
NIED claim has no basis in current Alaska law. The Schacks
appeal.
III.
STANDARD OF REVIEW
"We
review grants of summary judgment de novo, determining
whether the record presents any genuine issues of material
fact."[4] "If the record fails to reveal a
genuine factual dispute and the moving party was entitled to
judgment as a matter of law, the trial court's grant of
summary judgment must be affirmed."[5] "A
resolution of the question of whether a plaintiff can assert
a claim for NIED is essentially an inquiry into whether the
defendant should reasonably foresee the injury to the
plaintiff and thus owes the plaintiff a duty of
care."[6] The scope and existence of a duty of care
are questions of law, which we review de novo.[7]
IV.
DISCUSSION
Alaska
law permits individuals to recover damages on the basis of
emotional distress under limited circumstances.[8] As a general
rule, damages are not awarded in the absence of a physical
injury.[9] We have established two exceptions to this
general rule: (1) the bystander exception and (2) the
preexisting duty exception.[10] We consider the applicability
of each exception to the Schacks' NIED claim; we then
consider whether this case warrants establishing a new theory
of NIED liability. We conclude that neither exception
applies, and an expansion of NIED liability is not warranted.
A.
The Bystander Exception Does Not Apply Under Existing Alaska
Law.
The
bystander exception allows certain bystanders to recover
damages for emotional distress caused by witnessing physical
injury to another.[11] We first recognized the bystander
exception in Tommy's Elbow Room, Inc. v.
Kavorkian.[12] In doing so, we adopted the reasoning of
the California Supreme Court in Dillon v. Legg,
[13]
which held that proof of the following elements establishes a
prima facie case of bystander liability: (1) the plaintiff
was "near the scene of the accident"; (2) the
plaintiffs shock resulted "from the sensory and
contemporaneous observance of the accident"; and (3) a
close relationship existed between the plaintiff and the
injured individual.[14] In Tommy's Elbow Room we
relaxed the second element to require only that it be
reasonably foreseeable that the plaintiff would
suffer emotional harm as a result of the accident, rather
than requiring that the plaintiff contemporaneously observed
the accident.[15]
The
Schacks' NIED claim presents the novel question whether
recovery is permitted when the injured relative and the
tortfeasor are the same person. Neither party cites a case,
from this court or any other jurisdiction, that has directly
addressed this precise question. The parties have stipulated
that the Schacks otherwise satisfy the elements of NIED under
Alaska law: they were near the scene of the accident and
rushed to it, where they were shocked to witness Elizabeth,
their daughter and sister, severely wounded and fighting for
her life.
The
California Supreme Court's opinion in Dillon
(whose reasoning we adopted in Tommy's Elbow
Room) contains language suggesting that recovery on an
NIED claim is not permitted when the plaintiff s injured
relative causes the accident. In Dillon, a mother
and daughter who witnessed a car strike and kill their infant
daughter and sister sued the car's driver.[16] The
Dillon court held that the mother and daughter had
alleged a prima facie NIED claim because the driver could
have reasonably foreseen that his conduct would cause them
emotional distress.[17] However, the court also noted that the
driver had raised a defense of contributory negligence by the
plaintiffs and the victim infant.[18] It explained that if, on
remand, this defense was sustained and the driver ultimately
found not liable by virtue of the mother, sister, or
infant's negligence, "the mother [and] sister
should [not] recover for the emotional trauma which they
allegedly suffered."[19] This statement indicates that,
if the victim contributed to the harm caused to the NIED
claimants, there can be no NIED recovery.
Another
California case in the Dillon line of cases
underscores this point. In Thing v. La Chusa the
California Supreme Court explained why not all individuals
who experience emotional distress can bring an NIED
claim.[20] It reasoned that emotional distress was
"an unavoidable aspect of the 'human condition'
" and the "overwhelming majority" of this
distress was not compensable.[21] For instance, "[c]lose
relatives who witness the accidental injury or death of a
loved one and suffer emotional trauma may not recover when
the loved one's conduct was the cause of that emotional
trauma."[22] These statements, although dicta,
suggest that Dillon and its progeny did not
establish that relatives of a tortfeasor can recover for
NIED, even if the tortfeasor was also injured.
We have
similarly suggested in dicta, citing the Dillon line
of cases, that the bystander exception does not permit
recovery when the tortfeasor and injured relative are the
same. We described the bystander exception as applying only
when "emotional distress [is] caused by the negligent
conduct of a defendant with whom the plaintiff had no
preexisting relationship, , "[23] This
limitation would seemingly preclude recovery when the
defendant, i.e., the tortfeasor, and the injured relative are
the same person. In such a case, the plaintiff obviously has
a preexisting relationship with the defendant.
Furthermore,
the Third Restatement of Torts emphasizes these indications
that NIED recovery is not applicable under the circumstances
of this case. The Restatement formulates the bystander
exception as applying when "[a]n actor . . . negligently
causes sudden serious bodily injury to a third
person."[24] Such a third person is missing when the
negligent actor is the same person as the injured victim. In
sum, this guidance uniformly indicates that the bystander
exception established in Dillon, and adopted by this
court in Tommy's Elbow Room, was never intended
to permit recovery when the accident was caused by the
plaintiffs injured relative.[25]
The
Schacks' arguments to the contrary are unavailing. The
Schacks argue that Elizabeth's dual role as tortfeasor
and injured relative is "irrelevant" because their
claim otherwise satisfies the prima facie elements of an NIED
claim. We disagree; this dual role is relevant, as explained
above, because it affects the initial question whether the
Schacks are the sort of plaintiffs meant to recover under the
bystander exception. And we have previously concluded that a
plaintiff failed to plead an NIED claim even when she
"[came] close to so many of the relevant factors for
establishing NIED in the absence of physical
injury."[26] Therefore, the fact that the Schacks
otherwise satisfy the elements of an NIED claim is not
dispositive.
The
Schacks point to State Farm Mutual Automobile Insurance
Co. v. Lawrence, [27] which characterized a bystander's
NIED claim as a direct claim rather than derivative of the
injured relative's claim. They are seemingly suggesting
that the viability of their NIED claim cannot depend on their
relationship to Elizabeth. Lawrence, unlike this
case, involved an insurance coverage dispute. In
Lawrence we resolved the question whether the
parents of a child severely injured by an uninsured driver
could collect policy limits for the parents' dual claims
for emotional distress and punitive damages arising from the
accident separate from those the child collected for physical
injuries.[28] We answered in the affirmative, in part
because we rejected the insurer's attempts to equate the
parents' NIED claim with one for loss of
consortium.[29]We distinguished the two types of claims,
explaining that "[u]nlike claims for loss of consortium,
claims for emotional distress concern injuries that the
claimants have suffered directly, rather than derivative
injuries that resulted from an injury to
another."[30] We decline to extend this dicta beyond
the context of parsing injuries for the purposes of
determining insurance coverage.
In sum,
we conclude that the Schacks have not stated a valid NIED
claim under existing Alaska law because there is no
indication that recovery was intended when the tortfeasor and
injured relative are the same individual.[31]
B.
The D.S.W. Factors Do Not Support Recognizing A New
Duty Of ...