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Larsen v. Banner Health System12/23/2003
CE, District Judge, dissenting.
I respectfully dissent.
The majority again expands the traditional rule disallowing recovery for mental or emotional injury only when such injury is linked to an actual or threatened physical impact. Although the majority says one thing, it clearly does the other. It claims, "we are not eager to expand the availability of damages for emotional distress." . Claiming that, " herefore, the availability of such damages must be limited to plaintiffs who can prove that emotional injury occurred under circumstances tending to guarantee its authenticity," it cites Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557 (Minn. 1996). Id. An examination of this case reveals that the Minnesota court limited this kind of recovery. "There must be a direct violation of the plaintiff's rights by willful, wanton or malicious conduct; mere negligence is not sufficient." Lickteig, at 562.
By adopting the Iowa independent duty exception, the majority fails in its effort and stated concern: "Our primary concern is the burden overbroad liability for emotional damages would impose on our court system." . The majority then states:
The recognized court and jury functions for the question of severity are likewise applicable. "It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." Kanzler, at 1341 (quoting Restatement, supra, cmt. j). The intensity and the duration of the distress are factors to be considered in determining its severity. Leithead, at 1067 (quoting cmt j). [ .]
This certainly opens the door for a number of cases to be considered by the trial courts. As one commentator has stated:
It is difficult to imagine how a set of rules could be developed and applied on a case-by-case basis to distinguish severe from nonsevere emotional harm. Severity is not an either/or proposition; it is rather a matter of degree. Thus, any attempt to formulate a general rule would almost inevitably result in a threshold requirement of severity so high that only a handful would meet it, or so low that it would be an ineffective screen. A middle-ground rule would be doomed, for it would call upon courts to distinguish between large numbers of cases factually too similar to warrant different treatment. Such a rule would, of course, be arbitrary in its application.
Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm -- A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 511 (1982), cited in Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex. 1993).
It is the expansion of this holding to many medical malpractice cases that concerns me. In the current times of medical malpractice issues, insurance and possible resulting loss of doctors in Wyoming, I predict this case will add fuel to the fire. After all, legal malpractice does not give rise to a claim for emotional distress but medical malpractice will. Long-Russell v. Hampe, 2002 WY 16, 39 P.3d 1015 (Wyo. 2002). Even though the majority tries to limit this expansion, I predict it will not:
Accordingly, we hold that in Wyoming, in the limited circumstances where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm. However, as can be seen by our discussion, this exception is extremely limited. We persist in seeking to assure that our already burdened court system will not be additionally burdened by an overly broad liability for emo
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