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Hislop v. Saltriver project Agricultural Improvement and Power District5/2/2000
ty concluded that the relationship was not sufficiently close in this case because of the short duration of the friendship (one and one-half years) and the lack of romantic involvement between the two friends. See id. However, the dissenting judge wanted to go even further:
The fact that Smith and Haithcoat were only friends has, to me, a bearing only on the extent of her damages, not on her right to recover. The jury can easily be instructed that that is one factor they may consider when determining her damages. I believe this is consistent with the flexible case-by-case approach suggested in Paugh. Id. at 1254.
Finally, I find favor in a dissent by the chief justice of the Nevada Supreme Court on this point. See Grotts v. Zahner, 989 P.2d 415, 417-18 (Nev. 1999). In Grotts, the majority of the Nevada Supreme Court overturned the plurality opinion in Nevada ex rel. Department of Transportation v. Hill, 963 P.2d 480 (Nev. 1998), which held that the determination of the closeness of the relationship between the bystander and the person injured is generally a question for the jury, but a trial court could determine as a matter of law that the relationship was not sufficiently close in a given case. See Hill, 963 P.2d at 484. In Hill, Justice Rose opined:
For example, a rule that would deny recovery to a plaintiff who "merely because of happenstance" witnesses the death or injury to his fiancée in an accident which occurs on the way to the wedding ceremony, yet permits recovery if an accident occurs on the couple's way to the wedding reception, is fallacious. 963 P.2d at 483.
The majority in Grotts decided to reject the plurality in Hill and draw a bright-line rule that any non-family relationship would fail as a matter of law, and even family relationships beyond the immediate family would be closely scrutinized. See Grotts, 989 P.2d at 416. In his dissent, now Chief Justice Rose defended Hill and chastised the majority for prematurely rejecting it, stating:
The rule adopted by the majority requires a relationship by blood or marriage before one can claim to have a close relationship for purposes of pursuing damages for negligent infliction of emotional distress.
While this rule will be predictable, it will permit some people to pursue this claim who have no close relationship, and yet prohibit others who have a loving, close relationship with someone injured or killed from pursuing these claims merely because they are not related by blood or marriage.
The case at issue provides a good exam ple. Kellie Grotts and John Colwell were very much in love and expected to marry in the near future. They were at the zenith of love and commitment. Numerous plays and novels have been written about the great loss suffered when this type of relationship ends with the death of one party. Yet the majority denies Kellie Grotts' claim for emotional distress caused as a result of witnessing the death of the love of her life and constant companion simply because their wedding date was a few months off. This same scenario could happen to an older man and woman who, for a variety of reasons, had lived together for years but were not formally married.
And the unfairness of the rule adopted today does not stop there. Anyone living in a non-traditional relationship will be denied the chance to recover emotional distress damages, while those living together with benefit of marriage will not suffer such prejudice. It is a fact of life that many gay men and lesbian women have partners with whom they have lived for decades and shared a close, loving relationship. These individuals will be denied the right to even claim damages for emotional
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