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Hislop v. Saltriver project Agricultural Improvement and Power District5/2/2000
AFFIRMED
In this appeal we are asked to expand the category of claimants who can recover damages for emotional distress caused by witnessing harm to another. Specifically, appellants request that they be permitted to pursue a claim for the distress they experienced at witnessing the electrocution and burning of their co-worker and friend caused by the negligence of appellees. Because we conclude that current Arizona law does not require that appellants be permitted to prosecute their claim, and because we believe that sound policy reasons favor denying recovery on such a claim, we affirm the trial court's grant of summary judgment to appellees.
BACKGROUND
Appellants Nanette Hislop and Michael McLaurin worked with Larry Matthews on a City of Phoenix sewer service crew. On August 22, 1995, Matthews was working in an open trench repairing a sewer main. Appellants were standing at the edge of the trench, just inches away from Matthews.
Matthews was using a jackhammer to break some concrete surrounding the sewer pipe when the jackhammer struck a high-voltage underground power line. Matthews burst into flames as electricity coursed through his body. The fireball emitted by the electrocution shot up out of the trench some four to six feet and momentarily engulfed appellants, although they were not burned.
Appellant Hislop ran to the truck to radio for help. Appellant McLaurin seized a nearby fire extinguisher and put out the flames that were consuming Matthews. McLaurin then climbed into the trench and carried the unconscious Matthews to the surface. Matthews died three weeks later.
Appellants sued appellees, and among other claims, they sought recovery for negligent infliction of emotional distress for witnessing Matthews' electrocution. Appellants alleged that they both had been close friends of Matthews, had been in the "zone of danger" when he was electrocuted, and had suffered mental, physical, and emotional injuries as the result of witnessing the injury to Matthews.
Appellees filed a motion for summary judgment, arguing that a claim for bystander emotional distress is available only to a plaintiff who has witnessed an injury to a close family member. Because appellants were not family members, appellees argued, they were not entitled to maintain such a claim.
The trial court agreed, noting that Arizona has never permitted anyone other than an actual family member to recover for bystander emotional distress. On the question whether recovery ought to be expanded for such a claim, the trial court referred to California law and noted that recovery in that state is denied to friends, housemates, or those who have merely a meaningful relationship to the victim. Based thereon, the trial court declined to extend recovery for bystander emotional distress to encompass close friends, noting that "the emotional trauma sustained by [appellants] was not reasonably foreseeable where the attachment to the victim derived from association as a friend, and not as a member of the victim's family."
The parties stipulated to the dismissal of the remaining negligence and negligence per se claims. Appellants timely appealed.
ISSUES
Appellants claim that existing Arizona law sanctions recovery for bystander emotional distress even when the by-stander is not a family member of the principal victim. Appellants also implicitly argue that if existing case law does not extend liability this far, we should do so.
ANALYSIS
Appellants first argue that in Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979), our supreme court held that a person could
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