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Larsen v. Banner Health System12/23/2003
11. Under this rule we are asked to settle questions of law in which it appears there is no controlling precedent from this court. W.R.A.P. 11.01.
DISCUSSION
This case requires us to examine the situations in which a plaintiff may make a claim for emotional damages. "Compensation for emotional distress is not a new concept in Wyoming." Gates v. Richardson, 719 P.2d 193, 194 (Wyo. 1986). Yet, as this case demonstrates, difficulty arises in determining exactly when a plaintiff may make a claim for emotional damages. A brief review of our previous decisions on this subject shows that the circumstances in which we allow plaintiffs to make claims for emotional damages are limited.
Traditionally recovery for mental or emotional injury was only allowed when such injury was linked to an actual or threatened physical impact. Id., at 195 (citing W. Keeton, Prosser and Keeton on Torts § 54 at 362-64 (1984)). Recovery was generally not allowed in cases where negligent acts caused purely emotional harm and there was no impact or threat of impact. Gates, 719 P.2d at 195. The reasons for limiting emotional damages in such a manner have generally been identified as: 1) emotional disturbance which is not severe enough to have physical consequences is relatively harmless so the task of compensating for it would be unduly burdensome; 2) bodily harm provides a guarantee of genuineness without which emotional distress is too easily feigned; and 3) where a defendant's conduct is merely negligent the magnitude of his fault is not such that he should be required to compensate the plaintiff for a purely mental disturbance. Payton v. Abbott Labs, 437 N.E.2d 171, 178-79 (Mass. 1982) (citing Restatement, Second, Torts § 436A, cmt. b).
Many state courts have modified this traditional rule. These courts have recognized that in some instances other considerations subjugate the reasons for limiting emotional damages. Therefore, some courts have embraced the idea that a duty of care should extend to at least some plaintiffs who suffer purely mental injuries. Gates, 719 P.2d at 195 and n.1 (collecting cases). In Wyoming we have modified the traditional rule and have allowed recovery for purely emotional injury. However, like most states, Wyoming has clearly restricted the instances in which recovery for emotional injury without accompanying physical injury will be allowed. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo. 1997).
Recovery for purely emotional distress is permitted in Wyoming in certain limited underlying actions. These actions are: "1) some intentional torts, Waters v. Brand, 497 P.2d 875, 877-878 (Wyo. 1972) (false imprisonment); Cates v. Eddy, 669 P.2d 912, 921 (Wyo. 1983) (malicious prosecution); 2) violation of certain constitutional rights, Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo. 1992); and 3) breach of the covenant of good faith and fair dealing, State Farm Mutual Auto. Ins. Co. v. Shrader, 882 P.2d 813, 833 (Wyo. 1994)." Blagrove, 934 P.2d at 1275-76. We have also recognized the torts of intentional and negligent infliction of emotional distress, but we have done so only under limited circumstances. Blagrove, 934 P.2d at 1275; Gates, 719 P.2d at 195 (negligent infliction of emotional distress limited by the requirements of a family relationship and observation of serious bodily harm); Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo. 1986) (intentional infliction of emotional distress limited by the requirements of extreme or outrageous conduct and severe emotional distress).
This court has also considered the issue of purely emotional damages in a negligence action involving a car collision. In Daily v. Bone, 906
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