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Larsen v. Banner Health System12/23/2003
ties stand in a contractual or fiduciary relationship and the nature of this relationship imposes a duty that would forseeably result in emotional harm to the plaintiff. Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995). The contract must generally be highly personal and laden with emotion. Id. The Alaska Supreme Court limits this rule by requiring that the emotional injury be serious or severe. Id., at 205.
We prefer Iowa's application of the independent duty exception because this expression is narrowly tailored and well reasoned. Under this exception recovery exists only in circumstances involving contractual services that carry with them deeply emotional responses in the event of breach. There must be a close nexus between the negligent action at issue and extremely emotional circumstances. Lawrence, 534 N.W.2d at 421. Whether this exception should be applied in Wyoming requires that we determine whether to extend a limited duty of care to those who suffer mental distress in the above-mentioned limited circumstances. In making this determination we seek to balance the view that a negligent act should have some end to its legal consequences against the view that the injured party has the right to recover for all harm caused. Gates, 719 P.2d at 196. Key policy factors to be considered are:
(1) the forseeablility of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.
Gates, 719 P.2d at 196 (citing Tarasoff v. Regents of University of California, 551 P.2d 334, 342 (Cal. 1976)).
First, we consider the forseeability of harm to the plaintiff. As noted in Gates, this is a vague test that essentially results in the court setting a legal duty and then outlining the policy principles that urge us to recognize such a duty. However, it is clear that the independent duty exception is based on the principle of forseeability. The exception is only applicable when there is a previous relationship between the parties, and this relationship is based on services that carry with them deeply emotional responses in the event of breach. Under such circumstances both parties are aware of the emotional aspects attending their relationship and are likewise aware of the potential for emotional damage. We can easily conclude that it is foreseeable that when two babies are switched at birth the parties involved will experience emotional distress when the error is discovered. As the Iowa Supreme Court said: " he birth of a child involves a matter of life and death evoking such 'mental concern and solicitude' that the breach of a contract incident thereto 'will inevitably result in mental anguish, pain and suffering.'" Oswald, 453 N.W.2d at 639; see also Geibel v. United States, 667 F.Supp. 215, 220 (W.D. Pa. 1987); Taylor v. Baptist Medical Center, Inc., 400 S.2d 369, 374 (Ala. 1981). We have characterized the parentchild relationship as one of the "earliest and most hallowed of the ties that bind humanity." Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo. 1976).
Second, we consider the closeness between the defendant's conduct and the injury suffered. In instances where the independent duty exception is applied there is a closeness between the defendant's conduct and the injury because the exception is limited to instances where the parties had some sort of relat
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