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Graves v. Estabrook3/3/2003
s burden of proving causation in fact should not be minimized. The emotional injury must be directly attributable to the emotional impact of the plaintiff's observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim. Therefore, recovery will not be permitted for emotional distress when the plaintiff is merely informed of the matter after the accident or for the grief that may follow from the death of the related accident victim. Corso, 119 N.H. at 656.
We subsequently have adhered to the limitations created in Corso. For example, in Nutter v. Frisbee Memorial Hospital, 124 N.H. 791 (1984), we refused to expand liability to plaintiffs who reached the hospital shortly after their child died. We cautioned 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 negligently inflicted death or injury, and as a result suffered emotional injury manifested 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 accident but observed their child in extremis at the hospital. We reaffirmed the requirement that plaintiffs be "sufficiently close to the accident scene to experience 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 distress caused by the denial of health insurance benefits to her husband, we held the plaintiff's reliance on Corso was "misplaced." Id. at 653. Our 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 related" to a dictionary definition: people "connected by consanguinity," Webster's Third New International Dictionary 1916 (unabridged ed. 1961), or "persons connected 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 related" was "contrasted with an absence [of a] relationship or the presence of only a distant relationship." Id. Corso established only that mental distress suffered by a plaintiff who is closely related is foreseeable and a plaintiff with no relationship is not foreseeable. Id. The defendant's argument, limiting 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 adopting traditional 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 foreseeability for three policy reasons: first, the State's strong interest in marriage; second, the potential invasion into an unmarried plaintiff's privacy required to prove a close relationship; and third, the need to limit the class of plaintiffs by a bright line rule. Elden, 758 P.2d at 586-88. We examine each reason in turn.
First is the State's strong interest in marriage. In Elden, the court stated that "to the extent unmarried cohabitants are granted the same rights as married persons, the state's interest in promoting marriage is inhibited." Id. at 586. The court noted
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