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CLOHESSY v. BACHELOR5/21/1996
" or adoption of "hastily-drawn `bright line' distinction "); Gain v. Carroll Mill Co., 114 Wn.2d 254, 260-61, 787 P.2d 553 (1990) (applied foreseeability analysis similar to that set forth in Dillon, with exception that court requires physical presence at
scene of accident or arrival shortly thereafter); Contreras v. Carbon County School District 1, 843 P.2d 589, 594 (Wyo. 1992) (rejected Thing in favor of "broader immediacy rule, which allows the plaintiff to recover if she observes the injury shortly after it occurs without material change in the attendant circumstances").
Although we discussed Dillon at length in both Amodio and Maloney, in neither case did the factual scenario present the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress. Central to this court's concern in Amodio and Maloney was that "the etiology of emotional disturbance is usually not readily apparent as that of a broken bone following an automobile accident . . . ." Maloney v. Conroy, supra, 208 Conn. 397. The problem is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged. For this precise reason most courts> have recognized that a cause of action for bystander emotional distress must be confined in order to avoid limitless liability. "Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened." Portee v. Jaffee, 84 N.J. 88, 99, 417 A.2d 521 (1980).
C
This case affords us with an opportunity to reexamine this court's holding in Strazza in light of Amodio and Maloney and the law regarding bystander emotional distress that has developed over the last four decades. Strazza did not provide this court with an analysis for rejecting bystander emotional distress; rather, the court relied on the state of the law in other jurisdictions at that time in arriving at its conclusion.
Our first inquiry is to determine whether a tortfeasor may owe a legal duty to a bystander. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.
"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exis
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