2002-118, CATRINA GRAVES v. FRANKLIN L. ESTABROOK

The plaintiff, Catrina Graves, appeals a ruling by the Superior Court (Hampsey, J.) granting the defendant, Franklin L. Estabrook’s, motion to dismiss her complaint f or negligent infliction of emotional distress. Estabook argued that because Graves was n ot related by blood or marriage to the decedent, but was only the decedent’s f iancée, she cannot recover for negligent infliction of emotional distress. We reverse a nd remand.

We rely upon the facts pled by Graves. In reviewing a motion to dismiss for failure to s tate a claim upon which relief may be granted, we assume the truth of all facts alleged by the plaintiff and construe all reasonable inferences in the light most favorable to h er. Minuteman, LLC v. Microsoft Corp., 147 N.H. 634, 636 (2002). If the facts do n ot constitute a basis for legal relief, we will uphold the granting of the motion to di smiss. Id.

Graves was engaged to Brett A. Ennis and had lived with him for approximately seven y ears. On September 23, 2000, Ennis was riding his motorcycle while Graves followed i mmediately behind him in a car. At an intersection, Estabrook’s vehicle failed to y ield at a stop sign and collided with Ennis. As Graves looked on, Ennis flipped over the h ood of Estabrook’s car and landed on the pavement. Graves immediately stopped her c ar and ran to the aid of her fiancé. She saw blood coming from his mouth and significant t rauma to his head. She followed the ambulance that transported her fiancé to the h ospital, stayed by his side while he was being treated, and attempted to comfort his pa rents and son. Ennis p. 2 died the next day. Graves alleges that as a result of witnessing t he collision and death of her fiancé, she suffered shock, severe mental pain and e motional distress.

The issue before us is whether a plaintiff who lived with and was engaged to marry the de cedent may recover for negligent infliction of emotional distress. We hold that she may r ecover damages for emotional distress as a result of witnessing the collision.

Many of the first States to recognize bystander liability for negligent infliction of e motional distress limited its scope by applying the "physical impact test," w ithout considering foreseeability. See Consolidated Rail Corp. v. G ottshall, 512 U.S. 532, 546-47 (1994). Under the physical impact test, the plaintiff m ust have sustained a physical impact, no matter how slight, in order to recover. Id. N ew Hampshire never adopted the physical impact test but instead followed the zone of da nger rule. Corso v. Merrill, 119 N.H. 647, 650 (1979); Jelly v. LaFlamme, 108 N.H. 471 (1968); Cote v. Litawa, 96 N.H. 174 (1950). We followed this r ule because we were concerned that "we would expose a defendant to liability that e xtended far beyond his culpability." Corso, 119 N.H. at 653. That rule pe rmitted recovery only when the bystander was within a physical zone of danger created by t he defendant’s negligence. See Jelly, 108 N.H. 471.

In Corso, however, we rejected the zone of danger rule. Corso, 119 N.H. at 658. Instead, we applied the traditional negligence analysis of foreseeability and c oncluded that "[a]lthough fear of unlimited liability is a valid concern, we now think that this concern must be weighed against a plaintiff’s serious emotional i njury that is directly caused by defendant’s negligence." Id. at 653.

We held that "freedom from mental distress is an interest that is today worthy of l egal protection" and that in deciding whether a defendant could be held liable, " [t]he key to applying a traditional negligence approach is the doctrine of foreseeability." Id. at 651-52; see Barnhill v. Davis, 300 N.W.2d 104, 107 (Iowa 1981); State v. Eaton, 710 P.2d 1370, 1375 (Nev. 1985); Clohessy v. Bachelor, 675 A.2d 852, 862 n. 11 (Conn. 1996) (all citing Corso’s t raditional approach with approval).

We adopted the test first enunciated in Dillon v. Legg, 441 P.2d 912 (Cal. 1968), in which the California Supreme Court set forth three factors for determining w hether a defendant should reasonably foresee injury to a bystander:

Dillon v. Legg, 441 P.2d at 920. Dillon noted that these three factors are n ot a rigid framework but "contemplate[] that courts, on a case-to-case basis, a nalyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen." Id. at 921.

This case requires us to examine the scope of Dillon’s third factor. The de fendant argues that we should continue to follow the California Supreme Court and adopt i ts subsequent holding in Elden v. Sheldon, 758 P.2d 582 (Cal. 1988). There, the c ourt held that unmarried cohabitants are not "closely related" and cannot r ecover for negligent infliction of emotional distress. Id. at 588. Other courts h ave adopted the same rule. See Ferretti v. Weber, 513 So. 2d 1333 (Fla. Dist. Ct. App. 1987); Sollars v. City of Albuquerque, 794 F. Supp. 360, 363 (D.N.M. 1992); Hastie v. Rodriguez, 716 S.W.2d 675, 676 (Tex. App. 1986). See generally Annotation, Relationship Between Victim And Plaintiff–Witness As Affecting Right T o Recover Under State Law For Negligent Infliction Of Emotional Distress Due To W itnessing Injury To Another Where Bystander Plaintiff Is Not Member Of Victim’s I mmediate Family, 98 A.L.R.5th 609 (2002); Note, p. 3 It’s All Relative: A G raphical Reasoning Model For Liberalizing Recovery For Negligent Infliction Of Emotional D istress Beyond The Immediate Family, 30 Val. U. L. Rev. 913, 917 (1996) [hereinafter c ited as Note].

As noted by the New Jersey Supreme Court in Dunphy v. Gregor, 642 A.2d 372, 375 ( N.J. 1994), "the [California Supreme Court] in Elden was reacting to the e xperience of the California courts with bystander liability under the Dillon standard." After Dillon, California courts had significantly expanded the s cope of bystander liability. For instance, the supreme court had held that a plaintiff n eed not visually perceive the injury to the third party. See Krouse v. Graham, 562 P.2d 1022, 1031 (Cal. 1977). Other California courts had held that arriving soon after t he accident was sufficient to satisfy the first two prongs of Dillon. See, e.g., Nazaroff v. Super. Ct. In And For Cty. Of Santa Cruz, 145 Cal. Rptr. 657, 664 (Ct. App. 1978); Archibald v. Braverman, 79 Cal. Rptr. 723 (Ct. App. 1969). The courts h ad also broadly interpreted the "closely related" factor. See Mobaldi v. Board of Regents of University of Cal., 127 Cal. Rptr. 720, 726-27 (Ct. App. 1976); see also Ledger v. Tippitt, 210 Cal. Rptr. 814, 824-28 (Ct. App. 1985). T hus, one reason for the holding in Elden was a need to rein in the expansion of by stander liability in California.

There has been no comparable expansion of the scope of bystander liability in New H ampshire. Indeed, in Corso, we emphasized the limits of bystander liability.

Corso, 119 N.H. at 656.

We subsequently have adhered to the limitations created in Corso. For example, i n Nutter v. Frisbee Memorial Hospital, 124 N.H. 791 (1984), we refused to expand l iability to plaintiffs who reached the hospital shortly after their child died. We c autioned that a "rule that permitted recovery... would create a potential cause of action in every parent who learned, by any reasonable means, of his or her child’s n egligently inflicted death or injury, and as a result suffered emotional injury m anifested by physical symptoms." Id. at 796. In Wilder v. City of Keene, 131 N.H. 599 (1989), we refused to expand liability to parents who did not witness the a ccident but observed their child in extremis at the hospital. We reaffirmed t he requirement that plaintiffs be "sufficiently close to the accident scene to e xperience a sensory perception of the event." Id. at 604. And, in Jarvis v. Prudential Insurance, 122 N.H. 648 (1982), where the plaintiff alleged emotional di stress caused by the denial of health insurance benefits to her husband, we held the pl aintiff’s reliance on Corso was "misplaced." Id. at 653. O ur cases, thus, have continued to narrowly construe Corso and, unlike the California Supreme Court, we are not faced with a need to curb bystander liability.

Notwithstanding this difference, the defendant urges us to construe the third factor of Corso literally. He argues that we should limit the meaning of "closely r elated" to a dictionary definition: people "connected by consanguinity," Webster’s Third New International Dictionary 1916 (unabridged ed. 1961), or "persons c onnected by kinship, common origin or marriage." American Heritage Dictionary 1473 ( 4th ed. 2000).

Corso, however, did not modify the phrase "closely related" with " by blood or marriage." Corso, 119 N.H. at 654. Rather, "closely r elated" was "contrasted with an absence [of a] relationship or the presence of on ly a distant relationship." Id. Corso established only that mental di stress suffered by a plaintiff who is closely related is foreseeable and a plaintiff w ith no relationship is not foreseeable. Id. The defendant’s argument, l imiting the analysis to a dictionary definition, amounts to a "dry classification [ that] puts the emphasis at the wrong place[]." Ouellette v. Blanchard, 116 N.H. 552, 556 (1976) (abandoning distinctions between invitee, licensee and trespasser by a dopting traditional p. 4 negligence principles). The appropriate analysis is not to resort to a dictionary definition but rather to use our traditional analysis of foreseeability.

In Elden, the California Supreme Court rejected a traditional analysis of f oreseeability for three policy reasons: first, the State’s strong interest in m arriage; second, the potential invasion into an unmarried plaintiff’s privacy r equired to prove a close relationship; and third, the need to limit the class of pl aintiffs by a bright line rule. Elden, 758 P.2d at 586-88. We examine each reason i n turn.

First is the State’s strong interest in marriage. In Elden, the court s tated that "to the extent unmarried cohabitants are granted the same rights as m arried persons, the state’s interest in promoting marriage is inhibited." Id. a t 586. The court noted the abolition of common law marriage as evidence of the public pol icy in favor of formal marriage. Id. at 587. Elden found no convincing r eason to permit recovery to couples who bear no legal obligations to each other to the s ame extent as those who undertake such obligations. Id.

The court in Elden apparently relied upon the dubious assumption that the pos sibility of recovery in tort litigation is an incentive to marry. Rejecting this a ssumption, the New Jersey Supreme Court observed that "a person who would not otherwise choose to marry would not be persuaded to do so in order to assure his or her l egal standing in a future personal injury action should that person have the misfortune of witnessing the serious injury of his or her spouse." Dunphy, 642 A.2d at 379. T he court noted that "[m]arriage will still maintain its preferential status u nder the law" and that allowing recovery "will not discourage marriage as a w orthwhile and desirable relationship or erode society’s commitment to the i nstitution of marriage." Id. We agree.

The second reason relied upon in Elden was the "difficult burden on the c ourts." Elden, 758 P.2d at 587. Elden reasoned that "[a] de termination whether a partner in an unmarried cohabitation relationship may recover da mages for emotional distress based on such matters as the sexual fidelity of the parties a nd their emotional and economic ties would require a court to undertake a massive i ntrusion into the private life of the partners." Id.

Again, we agree with the New Jersey Supreme Court, which noted that "[o]ur courts h ave shown that the sound assessment of the quality of interpersonal relationships is not be yond a jury’s ken and that courts are capable of dealing with the realities, not s imply the legalities, of relationships to assure that resulting emotional injury is g enuine and deserving of compensation." Dunphy, 642 A.2d at 378. Moreover, i nquiry into the quality and intimacy of a relationship is often necessary in loss of c onsortium cases. See, e.g., id. at 378; Labonte v. National G ypsum, Co., 113 N.H. 678, 682-83 (1973). Engaging in a similar inquiry in the instant c ase breaks no new ground.

Furthermore, the real burden is not on the court but on the plaintiff who chooses to s eek recovery for negligent infliction of emotional distress. At the outset, the plaintiff w ill know that the details of the relationship with the decedent will be examined and that t his may involve an intrusion into the plaintiff’s private life. The decision to s ubmit to this searching inquiry is the plaintiff’s choice and should not be the ba sis for limiting liability.

Third, the court in Elden relied upon "the need to limit the number of pe rsons to whom a negligent defendant owes a duty of care." Elden, 758 P.2d at 588. T he court noted that "[i]t would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the l acerated feelings of every other person disturbed by reason of it, including every by stander shocked at an accident, and every distant relative of the person injured, as w ell as his friends." Id. (quotation omitted). The court stated that the a bsence of a bright line rule "would result in the unreasonable extension of the s cope of liability of a negligent actor." Id. While admitting that the "close emotional ties between unrelated or distantly related persons is often s trong" and "the result of injury... may be as devastating as that suffered by a member of the immediate family," the court concluded that "[t]he problems of multiplication of actions and damages that would result from such an extension of l iability would place an intolerable burden on society." Id. (citations and qu otations omitted.) p. 5 Rejecting the bright line rule in Elden, however, does not place an intolerable bu rden upon society or unfair burden upon a negligent defendant. Rather, it allows r ecovery for an eminently foreseeable class of plaintiffs. This class of plaintiffs is further narrowed by "the other elements of the bystander cause of action, such as c ontemporaneous observation, death or serious injury to the victim, and severe emotional i njury to the plaintiff, [that] structure the kind of ‘particularized foreseeability’ that ensures that the class of plaintiffs is reduced even further and t hat limitless liability is avoided." Note, supra at 947.

Elden argued that "[t]he need to draw a bright line in this area of the law i s essential" because there is no "principled distinction between an unmarried c ohabitant who claims to have a de facto marriage relationship with his partner and de facto siblings, parents, grandparents or children." Elden, 758 P.2d at 588. W hile this observation is accurate, it fails to consider that there is also no logical di stinction between denying recovery to a fiancée who has lived with her betrothed for s even years and allowing recovery to a wife who met and married her husband a week before t he accident. See State, Dep’t. of Transp. v. Hill, 963 P.2d 480, 483 ( Nev. 1998) (characterizing recovery after the wedding, but not beforehand, as " fallacious"). A bright line rule that includes only individuals related by bl ood or marriage is

Note, supra at 917.

More fundamentally, we decline to adopt a bright line rule when a "flexible a pproach, designed to account for factual nuances" is available. See Quirk v. Town of New Boston, 140 N.H. 124, 131 (1995); see also State v. R eid, 135 N.H. 376 (1992). Foreseeability accounts for factual nuances, while a bright l ine rule is at odds with foreseeability. This is the rationale of Corso.

Corso rejected the bright line "zone of danger" rule as a " mechanical rule that does more harm than good." Corso, 119 N.H. at 656 ( quotation omitted). Instead, we relied upon the traditional test of foreseeability, obs erving "that the adoption of well-defined foreseeability factors will not lead to u nlimited liability, and that the threat of remote and unexpected liability is not a s ubstantial fear." Id. In this regard, we agree with the New Jersey Supreme C ourt that the expedience of a bright line rule "does not outweigh the need to r ecognize claims that are legitimate and just." Dunphy, 642 A.2d at 378. We t herefore find unpersuasive the argument in Elden that a bright line rule is n ecessary.

We conclude that "to foreclose [an unmarried cohabitant] from making a claim based u pon emotional harm because her relationship with the injured person does not carry a pa rticular label is to work a potential injustice... where the emotional injury is g enuine and substantial and is based upon a relationship of significant duration that... i s deep, lasting and genuinely intimate." Id. A number of courts have r eached a similar conclusion. See Thurman v. Sellers, 62 S.W.3d 145, 164 ( Tenn. Ct. App. 2001); Heldreth v. Marrs, 425 S.E.2d 157, 162-63 (W. Va. 1992); James v. Lieb, 375 N.W.2d 109, 115 (Neb. 1985); Paugh v. Hanks, 451 N.E.2d 759, 766-67 (Ohio 1983); Sinn v. Burd, 404 A.2d 672, 685 (Pa. 1979); Leong v. T akasaki, 520 P.2d 758, 766 (Haw. 1974). See generally, Annotation, 98 A.L.R.5th 609.

We thus recognize that unmarried cohabitants may have a close relationship, i.e., a "relationship that is stable, enduring, substantial, and mutually supportive... c emented by strong emotional bonds and provid[ing] a deep and pervasive emotional s ecurity." Dunphy, 642 A.2d at 380. In determining whether a relationship m eets this standard, a court should

Id. at 378 (quotation omitted).

In this case, the plaintiff alleged in her complaint that she was engaged to the de cedent and that they had lived together for seven years immediately preceding the a ccident. Construing all reasonable inferences in the light most favorable to the plaintiff, Minuteman, LLC v. Microsoft Corp., 147 N.H. at 636, we conclude that it i s reasonable to infer that in the course of their lengthy cohabitation the plaintiff and h er fiancé enjoyed mutual dependence, common contributions to a life together, emotional r eliance on each other and attended to life’s mundane requirements together. We c onclude that the pleadings are reasonably susceptible of a construction that would w ithstand a motion to dismiss.

DALIANIS, J. dissenting. Because I believe that the class of bystanders who may recover f or negligent infliction of emotional distress should be limited to those closely related t o the victim by marriage or blood, I respectfully dissent.

In Corso v. Merrill, 119 N.H. 647 (1979), we abandoned the "zone of da nger" standard which barred recovery unless the plaintiff had been exposed to a r isk of physical harm, and instead permitted bystander recovery for negligent infliction of emotional distress premised upon a traditional test of foreseeability. Id. at 657. I n expanding this cause of action, we recognized the need to permit recovery for a " plaintiff’s serious emotional injury that is directly caused by [the] defendant's negligence." Id. at 653. At the same time, however, "we r ecognized the need for a clearly-defined boundary to liability in this area...." Nutter v. Frisbie Mem. Hosp., 124 N.H. 791, 795 (1984). This necessity arises be cause the liability of a negligent defendant to a bystander is largely derivative. Id. a t 794. "The risks of indirect harm from the loss or injury of loved ones [are] pe rvasive and inevitably realized at one time or another." Id. (quotation om itted). To recognize liability for all such harms, however, would impose "remote a nd unexpected liability" upon defendants in bystander cases. See Corso, 1 19 N.H. at 656. While it is difficult to determine the point at which the harm is no l onger reasonably foreseeable to a defendant, "[t]he fact that such a boundary is di fficult to draw does not obviate the reasons for drawing it." Nutter, 124 N.H. at 795.

In establishing a clearly-defined boundary to liability, we must balance the need to c ompensate those plaintiffs whose injuries derive from the defendant’s negligence w ith the need to avoid both infinite liability and uncertainty in the law. See Wilder v. City of Keene, 131 N.H. 599, 603 (1989). Thus, we have narrowly construed the f oreseeability factors that we adopted in Corso to achieve this balance by " clearly limiting bystander recovery to those plaintiffs whose injuries were most di rectly and foreseeably caused by a defendant’s negligence." Nutter, 124 N.H. at 795.

The policy goals of limited liability and certainty of the law cannot be achieved if t he class of plaintiffs who may recover is based upon the subjective emotional connection of the parties. Rather, we should narrowly construe the "closely related" factor by limiting recovery with objective standards that clearly define the defendant’s l iability. See Grotts v. Zahner, 989 P.2d 415, 417 n.6 (Nev. 1999). Accordingly, I would restrict the class of plaintiffs who may recover under this cause of action to those closely related to the victim by the objective criteria of blood or m arriage.

The majority’s interpretation of the "closely related" factor is " so ambiguous as to limit the class of plaintiffs who could assert a claim for [ negligent infliction of emotional distress] only by the imagination of counsel drafting t he pleadings." Lindsey v. Visitec, Inc., 804 F. Supp. 1340, 1344 (W.D. Wash. 1992) (quotation omitted). If the emotional connection between the bystander and the v ictim determines whether they are "closely related," there is no principled di stinction, for example, between an unmarried cohabitant who claims to have a s ufficiently "intimate" relationship with the victim and close friends who claim t he same intimacy. See Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988). I di sagree with the p. 7 New Jersey Supreme Court’s holding in Dunphy v. Gregor, 642 A.2d 372, 378 (N.J. 1994), that a standard that "take[s] into account the duration of t he relationship, the degree of mutual dependence, the extent of common contributions to a l ife together, [and] the extent and quality of shared experience" properly confines t his cause of action within a well-defined boundary. To the contrary, the " application of these factors would not provide a sufficiently definite and pr edictable test to allow for consistent application from case to case." Elden, 758 P.2d at 587; see also Nutter, 124 N.H. at 795 (recognizing the n eed to avoid uncertainty in the law).

If the class of potential plaintiffs who may recover is extended beyond those closely r elated to the victim by blood or marriage, courts will face difficult problems of proof i n determining whether the relationship is sufficiently close to permit recovery. See Elden, 758 P.2d at 587. Under the majority’s holding, courts will be compelled t o define and make findings about the subjective emotional connection between the parties i n an attempt to determine whether the plaintiff’s emotional trauma was reasonably f oreseeable to the defendant. Adopting such a standard will extend this cause of action beyond that contemplated by Corso.

Thus, I would not expand the class of potential plaintiffs beyond those closely related t o the victim by the objective criteria of marriage or blood. While I recognize that " [s]uch limitations are indisputably arbitrary since it is foreseeable that in some c ases unrelated persons have a relationship to the victim or are so affected by the t raumatic event that they suffer equivalent emotional distress," Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989), defining the class of "closely related" by standers by the depth of their emotional connection to the victim would unreasonably e xpand the defendant’s liability. See Elden, 758 P.2d at 588.

The majority declines to adopt a bright line rule in favor of a "flexible a pproach" to account for "factual nuances." I fail to see how adopting a br ight line rule here is any different from the bright line rule that we have followed w ith regard to the contemporaneous observation factor. We have denied recovery to parents w ho viewed their deceased child in the hospital after the accident, see Nutter, 124 N.H. at 795-96, and to parents who observed their child in extremis w ithin one hour of the accident, see Wilder, 131 N.H. at 603-04. We did so, n ot because we deemed the parents’ emotional trauma unforeseeable to the defendant, bu t rather as a means of reasonably limiting the defendant’s liability. See Wilder, 131 N.H. at 604; Nutter, 124 N.H. at 795-96.

We have heretofore avoided expanding the scope of bystander liability. We have done so by narrowly construing the Corso factors and by establishing clearly defined bou ndaries to the cause of action. I see no reason to depart from this practice, and, t herefore, I would affirm.

BROCK, C.J., joins in the dissent.