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Chouinard v. Health Ventures2/13/2002
5-16, 956 P2d 960 (1998). Rather, she bases her second theory of damages solely on the proposition that the presence of a growing tumor was sufficient to establish a physical injury or impact that permits her to recover emotional distress damages.
Because plaintiff failed to prove that the tumor caused any of her physical symptoms, her alternative argument necessarily assumes that the tumor, while growing, did not affect her in any tangible way. Similarly, there is no evidence that the tumor grew to any appreciable extent. Rather, the most that the jury could infer from the evidence was that the tumor grew, to some unspecified extent, over the four-month period. That evidence does not constitute a sufficient physical impact to permit plaintiff's claim for emotional distress to go to the jury.
Neither the Supreme Court nor we have sought to define the minimum amount of bodily harm necessary to constitute a physical impact. See Shoemaker v. Management Recruiters International, 125 Or App 568, 573-74, 865 P2d 1331 (1993). In Hammond, however, the Supreme Court declined the plaintiff's invitation to depart from its cases requiring a physical impact as a prerequisite to recovery for negligently inflicted emotional distress. 312 Or at 26-27. The court's adherence to its precedent suggests that its earlier opinions, which required some form of physical injury , remain good law. See Fehely v. Senders, 170 Or 457, 461, 135 P2d 283 (1943). Consistently with Fehely, we have referred to the physical impact rule as requiring a "physical injury" that gives rise to emotional distress. See Rustvold v. Taylor, 171 Or App 128, 137, 14 P3d 675 (2000); Curtis v. MRI Imaging Services II, 148 Or App 607, 612, 941 P2d 602 (1997), aff'd on other grounds 327 Or 9, 956 P2d 960 (1998). We have recognized, however, that the notion of a physical injury also includes offensive sexual touching that gives rise to emotional distress. Wilson v. Tobiassen, 97 Or App 527, 532, 777 P2d 1379, rev den 308 Or 500 (1989); see Shoemaker, 125 Or App at 573-74 (describing the offensive touching in both Wilson and that case as a form of "sexual molest[ation]").
At a minimum, the physical impact rule requires an act or omission that results in some perceptible physical effect on a plaintiff. We need not decide whether more is required to constitute a sufficient physical impact to warrant recovery of emotional distress damages. It is sufficient to say, on the facts of this case, that the mere presence of a growing tumor that had no perceptible effect on plaintiff is not a sufficient physical impact to recover damages for negligently inflicted emotional distress. On this record, the trial court correctly granted defendants' directed verdict motion.
Affirmed.
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