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Graves v. Estabrook3/3/2003
Hillsborough-southern judicial district
Argued: January 8, 2003
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 for negligent infliction of emotional distress. Estabook argued that because Graves was not related by blood or marriage to the decedent, but was only the decedent's fiancée, she cannot recover for negligent infliction of emotional distress. We reverse and remand.
We rely upon the facts pled by Graves. In reviewing a motion to dismiss for failure to state 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 her. Minuteman, LLC v. Microsoft Corp., 147 N.H. 634, 636 (2002). If the facts do not constitute a basis for legal relief, we will uphold the granting of the motion to dismiss. Id.
Graves was engaged to Brett A. Ennis and had lived with him for approximately seven years. On September 23, 2000, Ennis was riding his motorcycle while Graves followed immediately behind him in a car. At an intersection, Estabrook's vehicle failed to yield at a stop sign and collided with Ennis. As Graves looked on, Ennis flipped over the hood of Estabrook's car and landed on the pavement. Graves immediately stopped her car and ran to the aid of her fiancé. She saw blood coming from his mouth and significant trauma to his head. She followed the ambulance that transported her fiancé to the hospital, stayed by his side while he was being treated, and attempted to comfort his parents and son. Ennis died the next day. Graves alleges that as a result of witnessing the collision and death of her fiancé, she suffered shock, severe mental pain and emotional distress.
The issue before us is whether a plaintiff who lived with and was engaged to marry the decedent may recover for negligent infliction of emotional distress. We hold that she may recover damages for emotional distress as a result of witnessing the collision.
Many of the first States to recognize bystander liability for negligent infliction of emotional distress limited its scope by applying the "physical impact test," without considering foreseeability. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 546-47 (1994). Under the physical impact test, the plaintiff must have sustained a physical impact, no matter how slight, in order to recover. Id. New Hampshire never adopted the physical impact test but instead followed the zone of danger 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 rule because we were concerned that "we would expose a defendant to liability that extended far beyond his culpability." Corso, 119 N.H. at 653. That rule permitted recovery only when the bystander was within a physical zone of danger created by the 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 concluded that " lthough fear of unlimited liability is a valid concern, we now think that this concern must be weighed against a plaintiff's serious emotional injury 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 legal protection" and that in deciding whether a defendant could be held liable, " he key to applying a traditional negligence approach is the doctrine of foreseeability." Id. at 651-52; see Barnhill v
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