 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
CLOHESSY v. BACHELOR5/21/1996
ber of jurisdictions, beginning in 1968 with the California decision in Dillon . . . have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party." Amodio v. Cunningham, supra, 182 Conn. 87.
The court also observed that under Dillon "the requirement of `sensory and contemporaneous observance' does not require a visual perception of the impact although it does require that the plaintiff bystander otherwise apprehend the event." Id., 89-90. Without rejecting the foreseeability approach, the Amodio court held that the plaintiff mother could not recover under Dillon because she did not have a contemporaneous sensory perception of the doctor's acts of negligence. "Merely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander." Id., 90.
This court again addressed the question of bystander emotional distress based upon medical malpractice in Maloney v. Conroy, supra, 208 Conn. 392, where the tort victim was the plaintiff's mother. After Amodio, but before Maloney was decided, however, California, in Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985), relaxed Dillon's contemporaneous sensory perception requirement in the context of a medical malpractice case. In Ochoa, as in Maloney, the plaintiff observed the effects of the medical malpractice over a period of time. The Supreme Court of California concluded that "the `sudden occurrence' requirement is an unwarranted restriction on the Dillon guidelines"; id., 168; and that the contemporaneous perception of the negligent act requirement for a medical malpractice case was satisfied "when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child . . . ." Id., 170.
In Maloney, this court, again leaving the door open for the foreseeability rule as set forth in Dillon, rejected the California Supreme Court's reasoning in Ochoa.
"Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another." (Internal quotation marks omitted.) Maloney v. Conroy, supra, 208 Conn. 402.
When this court decided Strazza in 1959, the nearly unanimous weight of authority refused, as previously stated, to recognize a cause of action for bystander emotional injuries. Indeed, even with respect to fear of injury to oneself, many courts> required that there be actual physical impact with the plaintiff's person in order for there to be recovery for emotional distress. W. Prosser, Torts (4th Ed. 1971) § 54, p. 333; annot., 18 A.L.R.2d 220 (1951). If, however, there was "impact some [courts>] have been willing to allow damages due in part to fear for another." W. Prosser, supra, p. 333. "Until 1968 the only cases allowing recovery for mental disturbance at the peril of another were old ones in intermediate courts>, which were ambiguous, and probably to be explained on the basis of threatened physical injury to the plaintiff herself." Id., p. 334.
Since this court decided Strazza, two principal schools of thought have emerged in support of allowing bystanders a cause of action for emotional distress — "zone of danger" and "reasona
Page 1 2 3 4 5 6 7 8 9 10 11 12 Connecticut Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|