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Larsen v. Banner Health System12/23/2003
, 556 N.W.2d at 562. Following the recitation of the excerpt from Lickteig, we went on to conclude that "based solely on an allegation of negligence, a litigant is not entitled to present an emotional damages claim to a jury." Hampe, at . Based on the certified question before us it appears that the plaintiffs similarly do not meet any of the three instances in which we allow recovery for emotional distress damages. They have not alleged physical injury, exposure to physical harm, or any "willful, wanton, or malicious conduct."
Additionally, the parties in Hampe and Lickteig had an attorney client relationship. A similar type of relationship exists between a patient and her doctor and hospital. Both types of claims arise from a relationship based on breach of contract and breach of a fiduciary duty. Hampe, -9. Hampe similarly contained elements of damage that resulted from a disturbance in the parent-child relationship. Therefore, Hampe appears at first glance to be controlling.
However, an important distinction must be made between Hampe and the instant case. Factoring into our decision in Hampe was our concern for the issues surrounding child custody. In Hampe, we cited to a Colorado case for its discussion of the child custody issues. We stated, " ith specific regard to the claim relating to child custody, we view with favor the case McGee v. Hyatt Legal Services, Inc., 813 P.2d 754, 758-59 (Colo.App. 1990), for the additional guidance it provides." Hampe, . We noted that court's concerns about the impossibility of quantifying intangible injuries to the parent-child relationship, the effect recognition of damages would have on the district court's authority to regulate and supervise custody decisions which must turn on the best interests of the child, the certainty of some significant level of emotional disturbance in the dissolution of a marriage which includes a child custody component (especially one burdened with a high level of animosity), as well as the certainty that neither parent can reasonably expect full-time custody of the children because of the statutorily required liberal visitation with the non-custodial parent.
Hampe, . Therein lies the difference.
In McGee the Colorado Supreme Court found that joint custody orders as opposed to sole custody orders do not constitute a compensable loss. McGee, 813 P.2d at 757-58 A close look at McGee reveals that the Colorado Supreme Court's reasons for denying recovery were not simply because the claim involved only intangible injuries which would be hard to quantify. The court also considered In re Marriage of Segel which recognized that such claims would circumvent and undermine the statutory scheme authorizing courts to regulate and supervise the custody of children whose parents are involved in dissolution proceedings. Id., at 758 (citing In re Marriage of Segel, 224 Cal. Rptr. 591 (1986)). While we recognize that the nature of the injuries claimed in this case is similarly intangible, the concerns that a court's authority will be undermined is completely absent.
Furthermore, divorce proceedings provide the parties with due process of law before the parent-child relationship is disrupted because each party is presented with notice and the opportunity to be heard by an independent third party. The final decision to disrupt the parent-child relationship rests with a judge charged with making such decisions in the best interests of the child. In the case now before us an independent third party did not review the merits of each party and then make an informed decision. The disruption in the parent-child relationship was allegedly due solely to defendant's negligence. Additionally, child cus
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