Schack v. Schack

          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 ...