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Graves v. Estabrook3/3/2003
trued the foreseeability factors that we adopted in Corso to achieve this balance by "clearly limiting bystander recovery to those plaintiffs whose injuries were most directly 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 the 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 liability. 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 marriage.
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 the 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 victim determines whether they are "closely related," there is no principled distinction, for example, between an unmarried cohabitant who claims to have a sufficiently "intimate" relationship with the victim and close friends who claim the same intimacy. See Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988). I disagree with the New Jersey Supreme Court's holding in Dunphy v. Gregor, 642 A.2d 372, 378 (N.J. 1994), that a standard that "take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience" properly confines this cause of action within a well-defined boundary. To the contrary, the "application of these factors would not provide a sufficiently definite and predictable 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 need to avoid uncertainty in the law).
If the class of potential plaintiffs who may recover is extended beyond those closely related to the victim by blood or marriage, courts will face difficult problems of proof in 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 to define and make findings about the subjective emotional connection between the parties in an attempt to determine whether the plaintiff's emotional trauma was reasonably foreseeable 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 to the victim by the objective criteria of marriage or blood. While I recognize that " uch limitations are indisputably arbitrary since it is foreseeable that in some cases unrelated persons have a relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress," Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989), defining the class of "closely related" bystanders by the depth of their emotional connection to the victim would unreasonably expand 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 approach" to account for "factual nuances." I fail to see how adopting a bright line rule here is any different from the bright line rule that we have f
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