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Larsen v. Banner Health System12/23/2003
ates, 719 P.2d at 197. Therefore, the availability of such damages must be limited to plaintiffs who can prove that emotional injury occurred under circumstances tending to guarantee its authenticity. Lickteig, 556 N.W.2d at 560.
As mentioned previously, many jurisdictions have in at least some fashion modified the traditional rule requiring actual or threatened physical impact. However, most jurisdictions still require proof of a physical manifestation of emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 598-99 (Tex. 1993) (collecting cases). Several jurisdictions have recognized a general right to recover for negligently inflicted emotional distress. Id., at 599. Some jurisdictions allow recovery where the claimant establishes the breach of some independent duty. Boyles, at 598-99 (citing Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992); Corgan v. Muehling, 574 N.E.2d 602 (Ill. 1991); Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990); Clomon v. Monroe City Sch. Bd., 572 So.2d 571 (La. 1990)). It is the independent duty exception to the general rule prohibiting recovery for strictly emotional damages that appellants urge us to apply.
The Iowa Supreme Court has set forth a good description of this exception. "An exception exists 'where the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm.'" Lawrence v. Grinde, 534 N.W.2d 414, 421 (Iowa 1995) (quoting Oswald v. LeGrand, 453 N.W.2d at 639). This exception is applied in circumstances involving contractual relationships for services that carry with them deeply emotional responses in the event of breach. Lawrence, at 421. Iowa has thus recognized the propriety of recovery of emotional distress in actions involving: 1) medical malpractice from negligent examination and treatment of a pregnant woman and her premature fetus; 2) a son when he saw the negligence of another cause injury to his mother; 3) negligent delivery of a telegram announcing the death of a loved one; and 4) negligent performance of a contract to provide funeral services. Lawrence, 534 N.W.2d at 421.
Other courts have recognized similar exceptions and have allowed recovery for the negligent transmission of telegraph messages, especially those messages announcing death or indicating a potential for mental distress. Clomon v. Monroe City Sch.Bd., 572 So.2d at 583 (citing Graham v. Western Union Telegraph Co., 34 So. 91 (La. 1930); Russ v. Western Union Telegraph Co., 23 S.E.2d 681 (N.C. 1943); Western Union Telegraph Co. v. Redding, 129 So. 743 (Fla. 1930)). Courts have also allowed similar recovery for the mishandling of corpses. Id. (citing Fortuna v. St. Bernard Memorial Gardens, Inc., 529 So.2d 883 (La.App. 1988); Shelmire v. Linton, 343 So.2d 301 (La.App. 1977); French v. Ochsner Clinic, 200 So.2d 371 (La.App. 1967); Blanchard v. Brawley, 75 So.2d 891 (La.App. 1954); Clark v. Smith, 494 S.W.2d 192 (Tex.Civ.App. 1973); Allen v. Jones, 163 Cal.Rptr. 445 (1980); Torres v. State, 228 N.Y.S.2d 1005 (1962)).
Oregon has recognized a similar exception but appears to have limited it to medical procedures. That state allows recovery "if the defendant care provider breached 'a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures.'" Simons v. Beard, 72 P.3d 96, 102 (Or.App. 2003) (miscarriage) (quoting Curtis v. MRI Imaging Serv. II, 956 P.2d 960 (Ore. 1998) (administering MRI)).
Alaska similarly recognizes a "pre-existing duty exception" to the physical injury rule. Kallstrom v. United States, 43 P.3d 162, 166 (Alaska 2002). Under this exception a plaintiff may recover when the par
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