COURT OF APPEALS DECISION DATED AND FILED May 20, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Gale Schaffer appeals a partial summary judgment dismissing his emotional distress claim against Mindy Aubry’s insurer, Progressive Northern Insurance Company. Schaffer contends the circuit court applied the wrong standard in determining his claim’s viability. We agree. We reverse the judgment and remand this case for further proceedings.
Background
¶2 On March 10, 2005, Aubry was travelling southbound on United
States Highway 141 in
¶3 Schaffer was injured as well and claims to suffer from post-traumatic stress disorder. He alleges he suffers from flashbacks and paranoia about driving, which made it difficult for him to return to work. He filed suit, seeking damages for his physical injuries, loss of income, and intentional or negligent infliction of emotional distress. Progressive sought to have the emotional distress claims dismissed, arguing Schaffer’s own deposition testimony demonstrated he never feared for his own safety.
¶4 The court concluded “this claim has to be founded on Plaintiff’s distress about what could happen to the plaintiff directly, not what had happened to somebody else….” It granted Progressive’s motion for partial summary judgment and dismissed the emotional distress claim. Schaffer petitioned us for leave to take an interlocutory appeal, and we granted the request.[1]
Discussion
¶5 Summary judgments are reviewed de novo, using the same methodology
as the circuit court. Bilda
v. County of Milwaukee, 2006 WI App 57, ¶8, 292
¶6 There are, generally speaking, two types of negligent
infliction[2]
of emotional distress claims—those to be brought by a “bystander” and those to
be brought directly by a “participant” in an incident. “Bystander” is shorthand for “a plaintiff who
alleges emotional distress arising from a tortfeasor’s negligent infliction of
physical harm on a third person.” Bowen
v. Lumbermen’s Mut. Cas. Co., 183
¶7 Regardless of the fact situation giving rise to the claim, a
plaintiff alleging negligent infliction of emotional distress must prove: (1) the defendant’s conduct fell below the
standard of care; (2) the plaintiff suffered injury; and (3) the defendant’s
conduct was a cause in fact of the plaintiff’s injury.[3] Bowen, 183
¶8 Here, the circuit court concluded Schaffer’s claim was direct
but untenable, not because it failed to meet the three elements articulated in Bowen,
but because Schaffer did not fear for his own safety. On appeal, Progressive maintains that
Schaeffer’s claim for emotional distress is not direct, but as a bystander, because
he was not worried about harm to himself at the time.
¶9 We reject outright the argument that Schaffer was a bystander
to this accident. His claim is not based
on “negligent infliction of physical harm to a third person.” Bowen, 183
¶10 But we disagree with the notion, as held by the circuit court
and perpetuated by Progressive, that Schaffer had to fear for his own safety
for his claim to proceed. In the first
place, the “fear for one’s safety” and the similar “zone of danger” rules
applied to bystander cases, Bowen, 183 Wis. 2d at 632, and
this is not a bystander case. Second,
these rules have been expressly rejected by our supreme court.
¶11 Nevertheless, the circuit court relied on Camp v. Anderson, 2006 WI App 170, 295 Wis. 2d 714, 721 N.W.2d 146, to conclude that Schaffer had to fear harm to himself. This reliance is misplaced. There, the Camps brought suit because thirteen-year-old Anthony Machones had terrorized their four-year-old son, Steven, by chasing him with a feces-covered cattail. Machones had also chased and jumped on Steven’s dog, injuring the dog so severely that it had to be euthanized.
¶12 We prohibited any claim for Steven’s emotional distress arising
from witnessing what happened to the dog.
Although it might have been an otherwise proper bystander claim, we
concluded public policy weighed against letting the claim proceed. We also concluded, however, that
¶13 The circuit court here mistakenly focused on the Camp
result to conclude Schaffer needed to fear for his own safety, but we
understand why the court did so. The
direct claim in
¶14 Even when a claim for negligent infliction of emotional distress is properly pled and proven, such a claim may still be barred by public policy considerations. See id., ¶¶13-14. These considerations include:
(1) whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or (6) whether allowance of recovery would enter a field that has no sensible or just stopping point.
Bowen, 183
¶15 Progressive makes a variety of public policy arguments as to why it believes Schaeffer’s claim should be precluded. For example, Progressive argues the claim should be barred because Aubry and Schaffer are unrelated. However, Progressive’s public policy arguments are unpersuasive, as they are premised on the mistaken belief that Schaffer’s claim is a bystander claim.
¶16 The circuit court properly concluded Schaffer has a direct claim, but erred in applying the explicitly abrogated fear for one’s own safety rule and dismissing Schaffer’s claim on that basis.[5] Accordingly, the partial summary judgment dismissing Schaffer’s claim for negligent infliction of emotional distress is reversed, and the cause is remanded for further proceedings.
By the Court.—Judgment reversed and cause remanded for further proceedings.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] We granted leave to appeal by order dated November 1, 2007. Additionally, Accident Fund General Insurance Company is not participating in this appeal.
[2] On appeal, the parties focus on negligent, not intentional, infliction of emotional distress.
[3] Case
law has held for some time that “where the plaintiff can demonstrate physical
injury at the time of the accident,” a claim for emotional injury arising from
the accident may also be made. See Rennick
v. Fruehauf Corp., 82
[4] Progressive further insists this was a bystander case because, it argues, Schaffer’s emotional distress is solely a result of witnessing Aubry’s death. The record belies this assertion. Schaffer does not dispute Aubry’s death caused him distress. However, he also testified at his deposition that he is bothered by the fact “the accident happened at all.” He claims to suffer paranoia about driving, which stems from the collision and not Aubry’s death. Schaffer also stated he has flashes and nightmares about the impending crash with the vehicle. Again, these afflictions stem from being a participant in the event itself rather than being an outside observer. It is participation in the event, not a party’s perception, that drives the determination of the type of claim.
[5] We
hold only that the complaint properly states a direct claim. We make no determination as to whether
Schaffer has fulfilled the three-prong burden of proof articulated in Bowen,
183