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Graves v. Estabrook3/3/2003
ions and quotations omitted.)
Rejecting the bright line rule in Elden, however, does not place an intolerable burden upon society or unfair burden upon a negligent defendant. Rather, it allows recovery 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 contemporaneous observation, death or serious injury to the victim, and severe emotional injury to the plaintiff, [that] structure the kind of 'particularized foreseeability' that ensures that the class of plaintiffs is reduced even further and that limitless liability is avoided." Note, supra at 947.
Elden argued that " he need to draw a bright line in this area of the law is essential" because there is no "principled distinction between an unmarried cohabitant 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. While this observation is accurate, it fails to consider that there is also no logical distinction between denying recovery to a fiancée who has lived with her betrothed for seven years and allowing recovery to a wife who met and married her husband a week before the 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 blood or marriage is
overinclusive because it permits recovery when the suffering accompanies a legal or biological link between bystander and victim, regardless of whether the relationship between the two is estranged, alienated, or in some other way removed. Conversely, the [rule] is underinclusive because it arbitrarily denies court access to persons with valid claims that they could prove if permitted to do so. Note, supra at 917.
More fundamentally, we decline to adopt a bright line rule when a "flexible approach, 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. Reid, 135 N.H. 376 (1992). Foreseeability accounts for factual nuances, while a bright line 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, observing "that the adoption of well-defined foreseeability factors will not lead to unlimited liability, and that the threat of remote and unexpected liability is not a substantial fear." Id. In this regard, we agree with the New Jersey Supreme Court that the expedience of a bright line rule "does not outweigh the need to recognize claims that are legitimate and just." Dunphy, 642 A.2d at 378. We therefore find unpersuasive the argument in Elden that a bright line rule is necessary.
We conclude that "to foreclose [an unmarried cohabitant] from making a claim based upon emotional harm because her relationship with the injured person does not carry a particular label is to work a potential injustice . . . where the emotional injury is genuine and substantial and is based upon a relationship of significant duration that . . . is deep, lasting and genuinely intimate." Id. A number of courts have reached 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); Leon
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