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Larsen v. Banner Health System12/23/2003
ionship. The very nature of the exception requires that the defendant's conduct be sufficiently close to the injury suffered. In such cases, there is a direct link between the injured party and the defendant. Although the holding in Daily was limited to automobile collisions, in that decision we recognized that a difference exists between a claim asserted by a "bystander" and a claim asserted by a direct victim of a traditional completed tort. Daily, 906 P.2d at 1045. The degree of closeness between the defendant's conduct and the injury suffered is one such distinction. Cases involving babies that have been switched at the hospital present the direct victims of a tort. The concerns related to the closeness of "bystanders" are thus not present. Recovery in such instances would be predicated upon a traditional, completed tort.
Third, we must be concerned with whether there is some certainty that the plaintiff suffered an injury. This element relates to the concern noted by the Lickteig court that the injury must occur under circumstances tending to guarantee its genuineness. Lickteig, 556 N.W.2d at 560. The limited nature of the independent duty exception alleviates some of this concern as it applies only when the relationship carries deeply emotional responses in the event of breach. In fact, the one thing common to the limited circumstances in which the exception is applied is that the circumstances present a great likelihood of genuine mental distress. Clomon v. Monroe City Sch.Bd., 572 So.2d at 583. In this particular case, a mother and daughter learned after forty-three years that they had been separated because two babies had been switched at birth. Little doubt remains that the parties involved in such an occurrence will suffer emotional distress. Indeed, the parties have lost the affection and close companionship that attends the parent-child relationship. The parties have bonded with other persons and recognized those persons as their own family only to shockingly discover that they are not related by blood, as they had once believed.
Fourth, we consider the moral blame attached to the defendant's conduct. This factor is used to determine whether the defendant is morally culpable before imposing liability. Moral blame generally results from situations in which the defendant had direct control over establishing and ensuring proper procedures to avoid the harm caused or where the defendant is the party best in the position to prevent the injury. See generally Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo. 1999). Traditionally, the reason for denying recovery for purely mental disturbances relied upon the judgment that a defendant who is merely negligent is not so blameworthy that he should be required to compensate for mental disturbances. However, we think moral blame does attach to the defendant's conduct when babies are switched at the hospital. The hospital has sole control over the babies and its identification procedures, and it is the hospital that is in the best position to prevent such an injury. We, therefore, think that moral blame must attach to such conduct.
The fifth and sixth factors, the policy in preventing future harm and the burden on the defendant in this instance, can be discussed together. We find it imperative that hospitals have procedures to ensure that newborn children are given to the proper parent. The need to prevent future harm is completely obvious and an extended discussion is unnecessary. Furthermore, the burden placed upon the defendant to avoid such harm in the future would not be so great. Procedures for the identification and safety of newborn babies are available and can easily be used.
Seventh, we must determine the con
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