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Monaco v. Healthpartners of Southern Arizona6/29/1999
rienen, 114 Ariz. 246, 560 P.2d 430 (App. 1977). Appellants reply that Hauskins v. McGillicuddy, 175 Ariz. 42, 852 P.2d 1226 (App. 1992), allows the denial of summary judgment to be reviewed on appeal if it presents only an issue of law. However, we need not resolve this dispute because, as noted above, appellants' basis for summary judgment (the absence of bodily harm) was reasserted in their subsequent motion for JMOL, which can be reviewed on appeal. Shoen v. Shoen, 191 Ariz. 64, 952 P.2d 302 (App. 1997).
DENIAL OF MOTION FOR JMOL
Relying primarily on Burns, DeStories, and the Restatement (Second) of Torts § 436A (1965), appellants contend the trial court improperly denied their motions for JMOL because there was no evidence Monaco suffered bodily harm to support a claim for negligent infliction of emotional distress. The Monacos agree Burns, DeStories, and Restatement § 436A apply, but maintain that the evidence supports their claim.
We review de novo a trial court's ruling on a motion for JMOL. Gemstar, Ltd. v. Ernst & Young, 185 Ariz. 493, 917 P.2d 222 (1996); Shoen. A trial court should grant a motion for JMOL only when the facts presented in support of a claim have so little probative value that reasonable people could not find for the claimant. Shoen. We view the evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. Id.; Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 883 P.2d 407 (App. 1993).
Arizona courts have long held that a claim for negligent infliction of emotional distress requires a showing of bodily harm. Our supreme court first enunciated this requirement in Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979). There, the plaintiff's complaint alleged that she had "suffered severe emotional and physical distress from witnessing her mother's injuries and suffering" after the defendant's vehicle had collided with the parked vehicle occupied by her and her mother. Id. at 114, 593 P.2d at 668. Citing Restatement § 436A, the supreme court reversed the trial court's dismissal of the plaintiff's emotional distress claim, holding that a person could recover "damages for shock or mental anguish at witnessing an injury to a third person," provided "the shock or mental anguish of the plaintiff manifested as a physical injury." Id. at 115, 593 P.2d at 669. The court concluded that the plaintiff's complaint stated a cause of action because it alleged "that the plaintiff suffered severe emotional and physical distress because of witnessing the injuries to her mother and that the plaintiff thereby suffered accompanying physical injury." Id. at 116, 593 P.2d at 670.
Appellants argue that Keck and the subsequent cases of Burns and DeStories require that the emotional distress manifest itself as a physical injury , such as an ulcer, before a claim is stated. We disagree. Comment c to Restatement § 436A provides:
The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves . . . does not make the actor liable when such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character.
The Arizona case law is in accord. Se
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