Terry Hedgepeth v. Whitman Walker Clinic, corrected, vacated 3/1/10
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 07-CV-158
T ERRY H EDGEPETH, A PPELLANT,
v.
W HITMAN W ALKER C LINIC AND M ARY F ANNING, M.D., A PPELLEES.
Appeal from the Superior Court of the
District of Columbia
(CA-6244-05)
(Hon. Robert E. Morin, Trial Judge)
(Argued En Banc June 10, 2010
Decided June 30, 2011)
Jonathan C. Dailey, with whom Robert C. Kostecka and David P. Korteling were on
the brief, for appellant.
Marc Fiedler, with whom Laurie A. Amell was on the brief, for the Trial Lawyers
Association of Metropolitan Washington, D.C., as amicus curiae in support of appellant.
Alfred F. Belcuore for appellees.
Kenneth H. Rosenau filed a brief on behalf of the Children’s National Medical Center
as amicus curiae in support of appellees.
Before W ASHINGTON, Chief Judge, R UIZ, G LICKMAN, F ISHER, B LACKBURNE-R IGSBY,
T HOMPSON, and O BERLY, Associate Judges, R EID* and K RAMER,** Associate Judges, Retired,
*
Judge Reid was an Associate Judge of the court at the time of argument. Her status
changed to Associate Judge, Retired, on April 7, 2011.
**
Judge Kramer was an Associate Judge of the court at the time of argument. Her
(continued...)
2
and F ARRELL, Senior Judge.
R UIZ, Associate Judge: Appellant Terry Hedgepeth alleges that he suffered serious
emotional distress after the doctor he saw at the Whitman Walker Clinic negligently
informed him that he was HIV positive when, in fact, he was not. Appellant presented
evidence that, as a result of the mistaken diagnosis, he was severely clinically depressed and
suffered repercussions in his employment and personal life until another clinic correctly
informed him that he was not afflicted with HIV, five years later. The Superior Court
granted appellees’ motion for summary judgment on the grounds that appellant had failed to
establish the requisite facts for the tort of negligent infliction of emotional distress, where
there is no other harm. A division of this court affirmed, agreeing with the Superior Court
that appellees’ alleged negligence did not place appellant within a “zone of physical danger,”
as required for recovery of emotional distress damages by Williams v. Baker, 572 A.2d 1062
(D.C. 1990) (en banc). Hedgepeth v. Whitman Walker Clinic, 980 A.2d 1229 (D.C. 2009).
We granted the petition for rehearing en banc to decide whether the “zone of physical
danger test” should be applied to preclude appellant’s claim that his doctor’s negligent
misdiagnosis caused him serious emotional injury. Hedgepeth v. Whitman Walker Clinic,
990 A.2d 455 (D.C. 2010). After reviewing the development of the law on this issue and the
**
(...continued)
status changed to Associate Judge, Retired, on May 1, 2011.
3
reason for the Williams zone of physical danger test, we conclude that appellant’s claim
should not be barred simply because he was not put at risk of physical injury. Although the
rule in Williams continues to be generally applicable to claims of negligent infliction of
emotional distress, the zone of physical danger requirement imposes an unnecessary
limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional
distress brought against a defendant who has a relationship with the plaintiff, or has
undertaken an obligation to the plaintiff, and whose negligence causes serious emotional
distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements
the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious
emotional distress will be recognized only where the defendant has an obligation to care for
the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily
implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff,
and serious emotional distress is especially likely to be caused by the defendant’s negligence.
We conclude this is such a case: the appellees, in the context of a doctor-patient relationship,
undertook to test and treat appellant for HIV, an undertaking that would necessarily implicate
the patient’s emotional well-being and entailed a specially likely risk of serious emotional
distress.
Appellant has presented evidence supporting his allegations that appellees
negligently misdiagnosed him as being HIV positive and that this misdiagnosis caused him
to suffer serious emotional distress. We, therefore, reverse the grant of summary judgment
for appellees and remand the case for further proceedings consistent with the principles we
4
set out in this opinion.
I. General Principles of Negligence
It is well-established that a claim alleging the tort of negligence must show: (1) that
the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the
plaintiff that was proximately caused by the breach. See, e.g., District of Columbia v.
Cooper, 483 A.2d 317, 321 (D.C. 1984) (citing P ROSSER, H ANDBOOK OF THE L AW OF T ORTS
§ 30 (4th ed. 1971) (hereinafter “H ANDBOOK OF THE L AW OF T ORTS”)). The court’s
threshold determination – namely, the existence of a duty – is “essentially a question of
whether the policy of the law will extend the responsibility for the conduct to the
consequences which have in fact occurred.” Id. at 321 (quoting H ANDBOOK OF THE L AW OF
T ORTS, supra, § 42). Stated another way: “The statement that there is or is not a duty begs
the essential question – whether the plaintiff’s interests are entitled to legal protection against
the defendant’s conduct.” Id. (quoting H ANDBOOK OF THE L AW OF T ORTS, supra, § 53). In
this case, we are tasked with determining the scope of the duty to avoid causing emotional
distress that results from negligence.
5
A. Duty and Foreseeability
In general, courts rely on the concept of “foreseeability” to determine whether the
defendant owed a duty to the claimant in a negligence action and examine whether the risk
to the claimant was “reasonably foreseeable” to the defendant.1 See, e.g., District of
Columbia v. Shannon, 696 A.2d 1359, 1366 (D.C. 1997); Haynesworth v. D.H. Stevens Co.,
645 A.2d 1095, 1098 (D.C. 1994). If the injury that befell the plaintiff was “reasonably
foreseeable” to the defendant, then courts will usually conclude that the defendant owed the
plaintiff a duty to avoid causing that injury; if the injury was not “reasonably foreseeable,”
then there was no duty. Compare Shannon, 696 A.2d at 1366 (holding that because
playground accident due to poor maintenance could have been reasonably foreseeable to the
District, trial court properly denied District’s motion for judgment on the ground it owed no
duty to child using playground), with Galloway v. Safeway Stores, Inc., 632 A.2d 736, 73940 (D.C. 1993) (holding that grocery store did not have “duty to foresee and protect”
1
We note that the concept of foreseeability is related to a court’s determination of
proximate, or legal, cause as well as to its determination of duty. “Strictly, the problem [of
foreseeability] is one of determining whether the duty imposed on the actor was designed to
protect the one harmed from the risk of harm from the hazard in question. However, courts
frequently treat such problems as problems of causation.” R ESTATEMENT (S ECOND) OF
T ORTS § 435 cmt. c (1977); see also D AN B. D OBBS, R OBERT E. K EETON, & D AVID G. O WEN,
P ROSSER AND K EETON ON T ORTS § 42, at 274 (5th ed. 1984) (hereinafter “P ROSSER AND
K EETON ON T ORTS”) (“It is quite possible to state every question which arises in connection
with ‘proximate cause’ in the form of a single question: was the defendant under a duty to
protect the plaintiff against the event which did in fact occur?”).
6
customer from rowdy children).2 See also Bd. of Trs. of the Univ. of the District of Columbia
v. DiSalvo, 974 A.2d 868, 870-71 (D.C. 2009) (discussing the required showing of
“heightened foreseeability” where the plaintiff claims that the defendant should be held liable
for intervening criminal acts).
B. Duty and the Relationship Between the Parties
The relationship between the plaintiff and the defendant is closely related to a court’s
determination of the foreseeability of the plaintiff’s injury and, ultimately, the scope of the
defendant’s duty. See, e.g., Washington Metro. Area Transit Auth. v. O’Neill, 633 A.2d 834,
840 (D.C. 1993) (“[W]here a special relationship exists, such as between a common carrier
and its passengers, the carrier undeniably has a duty to protect its passengers from
foreseeable harm arising from criminal conduct of others.”); Graham v. M & J Corp., 424
A.2d 103, 105 (D.C. 1980) (“It is established in the District of Columbia that a landlord has
a duty to use reasonable care to keep safe those common areas of the building retained under
his control.”). We have described a court’s examination of whether a duty exists as a
“foreseeability of harm test” that is determined, in large part, by the nature of the relationship
2
Prosser and Keeton provide the following example: “[W]henever the automobile
driver should, as a reasonable person, foresee that his conduct will involve an unreasonable
risk of harm to other drivers or to pedestrians, he is then under a duty to them to exercise the
care of a reasonable person as to what he does or does not do.” P ROSSER AND K EETON ON
T ORTS, supra, § 53, at 358.
7
between the parties:
In determining the existence of a duty owed to a plaintiff,
[courts] have applied a “foreseeability of harm” test, which is
based on the recognition that duty must be limited to avoid
liability for unreasonably remote consequences. . . . Inherent
also in the concept of duty is the relationship between the
parties out of which the duty arises. . . . [U]ltimately, the
determination of whether a duty should be imposed is made by
weighing the various policy considerations and reaching a
conclusion that the plaintiff’s interest[s] are, or are not, entitled
to legal protection against the conduct of the defendant.
Odemns v. District of Columbia, 930 A.2d 137, 143 (D.C. 2007) (alteration in original)
(quoting W.C. & A.N. Miller Co. v. United States, 963 F. Supp. 1231, 1243 (D.D.C. 1997)).
Thus, “the scope of the defendant’s undertaking determines the scope of its duty,”
Haynesworth, 645 A.2d at 1098, by which we mean that the foreseeable risks associated with
the defendant’s failure to complete an undertaking provide the basis for the court’s
assessment of duty. Recently, we have even suggested that “the relationship between the
parties is the key to determining whether the defendant had a legally enforceable duty to the
plaintiff,” Bd. of Trs., 974 A.2d at 871 n.1 (quoting Workman v. United Methodist Comm.,
355 U.S. App. D.C. 131, 137, 320 F.3d 259, 265 (2003)) (emphasis added), and that issues
related to foreseeability might better be “confine[d] . . . to the proximate cause analysis.” Id.
(citing P ROSSER AND K EEETON ON T ORTS, supra, § 53, at 356).
8
In general, therefore, there is only a minimal duty – if any – owed to a party who is
at arms’ length.3 Once the defendant enters into a relationship with the plaintiff, however,
a corresponding duty of care arises. See, e.g., Tolu v. Ayodeji, 945 A.2d 596, 603 (D.C.
2008) (“In negligence actions the standard of care by which the defendant’s conduct is
measured is often stated as ‘that degree of care which a reasonably prudent person would
have exercised under the same or similar circumstances.’” (quoting Morrison v. MacNamara,
407 A.2d 555, 560 (D.C.1979))); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C. 2009)
(discussing the national standard of care applicable in medical malpractice claim against a
surgeon). If the applicable standard of care is breached, the person to whom the duty is owed
may recover for damages proximately caused by the negligence, including damages for
physical injury, monetary loss, and ancillary or “parasitic” damages for related mental
distress (sometimes referred to as “pain and suffering”).
See, e.g., Washington &
Georgetown R.R. Co. v. Dashiell, 7 App. D.C. 507, 514 (1896) (“Where a party has suffered
physical injury, it seems to be well settled, that mental pain and suffering, attendant upon and
as a natural incident of such bodily injury, may be considered as an element in estimating the
damages.”).
3
“There are . . . a good many defendants, and a good many situations, as to which
there is no such duty [to exercise the care of a reasonable person]. In other words, the
defendant is under no legal obligation toward the particular plaintiff to act with the care of
a reasonable [person], and he is not liable even though his conduct falls short of that
standard, and the other is injured as a result.” P ROSSER AND K EETON ON T ORTS, supra, § 53,
at 358.
9
II. Development of the Tort of Negligent Infliction of Emotional Distress
Claims of negligence that seek damages for only mental pain and suffering
(independent of any physical injury) historically have been analyzed under a different
framework, however. Here, as in other jurisdictions, courts have long been reluctant to hold
defendants liable when their negligence causes emotional distress without accompanying
physical injury.4 Courts’ historic skepticism of emotional distress claims focused on three
concerns: avoiding fictitious or trivial claims, the difficulty of establishing (or disproving)
the nature and extent of the alleged mental injury, and limiting liability.
See, e.g.,
R ESTATEMENT (S ECOND) OF T ORTS, supra, §§ 46 cmt. b (discussing the tort of intentional
infliction of emotional distress), 436A cmt. b (discussing the tort of negligent infliction of
emotional distress).
Thus, over a century ago, in Washington & Georgetown R.R. Co., the Court of
Appeals of the District of Columbia considered and rejected a claim for damages resulting
from “impairment of the plaintiff’s nervous system,” explaining:
4
See S TUART M. S PEISER, C HARLES F. K RAUSE, & A LFRED W. G ANS, T HE A MERICAN
L AW OF T ORTS § 16:1 (2009); H ANDBOOK OF THE L AW OF T ORTS, supra, § 54.
10
We know that, from repeated scares or frights, persons are
liable to have their sensibilities easily, and in some cases
morbidly excited, and that seems to be the case here. But the law
furnishes no remedy for such sensitive condition. To attempt to
furnish a legal remedy in such case, would open the door to the
wildest speculation. Without for a moment intimating that
simulation existed in this case, yet the nature of such claim
would render it easy of simulation; and if not simulated, the
temptation would be strong to exaggeration, and the assigning
of one cause for another in the production of the morbid state of
the nervous sensibilities; and all this, though it might be without
real foundation, would be most difficult to disprove by the party
sought to be charged.
7 App. D.C. at 515 (emphasis added).5 These concerns led the Court of Appeals for the
District of Columbia to unequivocally assert, in 1939, that “[t]he law does not . . . impose a
general duty of care to avoid causing mental distress.” Clark v. Associated Retail Credit
Men, 70 App. D.C. 183, 185, 105 F.2d 62, 64 (1939). As should be clear, the different
treatment accorded claims of mental distress is not based on a straightforward application of
the traditional principles of negligence discussed in the previous section. Rather, by framing
the question in terms of “duty,” instead of proximately caused damages, courts have
purposely developed the common law to balance competing societal interests. In the words
of the Clark court: “For the sake of reasonable freedom of action, in our own interest and
5
See also Perry v. Capital Traction Co., 59 App. D.C. 42, 44, 32 F.2d 938, 940
(1929) (rejecting a tort claim based on “nervous shock or fright” because “mere fright is
easily simulated and difficult to disprove, and that impairment of the nervous system is of
such an intangible character that there is no practical standard by which the extent of the
impairment may be determined”).
11
that of society, we need the privilege of being careless whether we inflict mental distress on
our neighbors.” Clark, 70 App. D.C. at 185, 105 F.2d at 64.6
A. The “Physical Impact” Requirement
Having rejected a “general” duty of care to avoid causing emotional distress, courts,
including in this jurisdiction, have imposed liability for the negligent infliction of emotional
distress only in limited situations, when additional factors are present that avoid or mitigate
the three policy concerns outlined above. In the District of Columbia, our definition of the
tort of negligent infliction of emotional distress has evolved over the years. In its earliest
iteration, we followed the “physical impact” rule, which permits recovery for negligently
inflicted emotional distress if the distress results from a physical impact and is accompanied
by physical injury. See Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187, 1188-89
(D.C. 1986) (citing cases going back to 1929, e.g., Perry, 59 App. D.C. at 44, 23 F.2d at
940); Washington & Georgetown R.R. Co., 7 App. D.C. at 514-15. The physical impact
requirement, although de minimis, see Asuncion, 514 A.2d at 1189 (“minimal physical
impact” requirement was satisfied by the “mere presence” of post-procedure medical gauze
6
See also P ROSSER AND K EETON ON T ORTS, supra, § 12, at 56 (discussing the tort of
intentional infliction of emotional distress and explaining that “[t]he most cogent objection
to the protection of such interests lies in the ‘wide door’ which might be opened, not only to
fictitious claims, but to litigation in the field of trivialities and mere bad manners”).
12
in a patient’s body), was thought to provide some guarantee of the legitimacy of the mental
harm alleged and thereby deter frivolous claims. See id. at 1189 n.1; Williams, 572 A.2d at
1065.
B. The “Zone of Physical Danger” Rule
In Williams v. Baker, this court, sitting en banc, abandoned the “physical impact”
requirement in favor of the more liberal “zone of physical danger” rule, which permits
recovery for mental distress if the defendant’s actions caused the plaintiff to be “in danger
of physical injury” and if, as a result, the plaintiff “feared for his own safety.” 7 572 A.2d at
1066.
In addition, we said, the alleged emotional distress must be “‘serious’ and
7
In Williams, a mother brought suit against her son’s doctor, Dr. Mark Baker,
alleging that he had been negligent in failing to diagnose her son with acute epiglottitis. 572
A.2d at 1063. Williams had brought her son to Dr. Baker’s office because he had a sore
throat, was gagging, and had a high fever. Id. Dr. Baker diagnosed Williams’s son as
suffering from a minor virus and sent him home. Id. Later that evening, however, he began
to cough severely and eventually stopped breathing. Id. Williams took her son to the
emergency room at Children’s Hospital, where he was hospitalized for ten days. Id.
Williams, who had accompanied her son throughout the entire episode, alleged that she had
suffered “extreme anxiety” during her son’s hospitalization, that she could not eat or sleep
for several days after he was hospitalized, and that she suffered from sleeplessness, severe
stomach problems, nausea, and diarrhea during the following months. Id. We concluded that
the appellant in Williams – who alleged that her mental distress was caused by fear for the
safety of her son – had not presented a viable claim for negligent infliction of emotional
distress because recovery was limited to “direct victims” of a tortious act, i.e., claimants who
were put in fear for their own safety and health, and the mother was not herself at risk of
physical danger. Id. at 1067.
13
‘verifiable.’” Id. at 1068 (quoting Bovsun v. Sanperi, 461 N.E.2d 843, 849 (N.Y. 1984)).
Under the rule set forth in Williams, the plaintiff no longer needed to show that her emotional
distress was the result of a “physical impact.” Id. at 1067.
In rejecting the physical impact requirement, we asserted that two of the earlier
objections to emotional distress claims – distrust of the available proof of mental distress and
the related fear of frivolous claims – no longer presented compelling reasons for courts to
impose such strict legal limitations on the scope of an actor’s duty. As we explained:
[R]equiring physical impact is no longer a necessary safeguard
against fraudulent claims. Due to advances in medical research
and improved diagnostic techniques, the presence of emotions
such as grief, anxiety, and anger is frequently accompanied by
physical indicia that are capable of objective proof.
....
“It appears completely inconsistent to argue that the medical
profession is absolutely unable to establish a causal connection
in the case where there is no impact at all, but that the slightest
impact . . . suddenly bestows upon our medical colleagues the
knowledge and facility to diagnose the causal connection
between emotional states and physical injuries.”
Id. at 1067 (alteration in original) (quoting Niederman v. Brodsky, 261 A.2d 84, 87 (Pa.
1970)). Therefore, “[o]nce the physical consequences of fright are recognized as deserving
of legal protection, it would be arbitrary to limit compensation to instances in which there
14
has been an impact.” Id. One year after Williams was decided, we clarified that although the
plaintiff’s emotional injury must be “serious and verifiable,” the plaintiff need not experience
a physical manifestation of the mental injury. Jones v. Howard Univ., Inc., 589 A.2d 419,
424 (D.C. 1991).
While recognizing that it no longer made sense to disqualify claims of emotional
distress as a class, Williams noted that one concern remained: even if legitimate, claims for
emotional distress resulting from negligent conduct might be nearly limitless if we were to
rely on traditional negligence principles of foreseeability to determine the scope of the
negligent actor’s liability.8
We concluded that the benefit of providing a remedy for
legitimate tortious wrongs had to be balanced against the danger of “imposing virtually
infinite liability based on foreseeability when the conduct is merely negligent.” 9 Williams,
572 A.2d at 1069. Thus we declined to follow the “foreseeability of risk test” adopted by the
8
The Supreme Court of the United States has explained that this concern of
“unpredictable and nearly infinite” liability is independent of and “has nothing to do with the
potential for fraudulent claims; on the contrary, it is based upon the recognized possibility
of genuine claims from the essentially infinite number of persons, in an infinite variety of
situations, who might suffer real emotional harm as a result of a single instance of negligent
conduct.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 552 (1994).
9
The Restatement suggests that the negligent actor’s lesser culpability, compared
with that of an intentional or reckless actor, is another reason for limiting liability for
emotional distress that results from negligence. See R ESTATEMENT (S ECOND) OF T ORTS,
supra, § 436A cmt. b.
15
California Supreme Court in Dillon v. Legg, 441 P.2d 912 (Cal. 1968).10 Williams, 572 A.2d
at 1070 (“If foreseeability be the sole test, then once liability is extended the logic of the
principle would not and could not remain confined.” (quoting Tobin v. Grossman, 249
N.E.2d 419, 423 (N.Y. 1969))).11 We decided, therefore, that a rule requiring that the
defendant’s conduct place the plaintiff in a “zone of physical danger” was a necessary and
logical alternative to a rule that relied on foreseeability alone. We reasoned that “liability in
tort law is based on a breach of duty and it is rational to postulate that the tortfeasor owes a
duty of care only to those who are physically endangered by the tortfeasor’s negligent act.”
Id. at 1072. In conclusion, we adopted the position expressed by the New York Court of
Appeals:
10
In Dillon, the California Supreme Court considered a claim brought by a mother
for emotional distress that followed from witnessing the death of her child. Margery Dillon
was crossing the street with her daughter when the defendant, David Legg, drove his car
across an intersection and struck and killed Dillon’s young daughter. 441 P.2d at 914. The
California court held that Dillon had a cause of action because “the negligent driver who
causes the death of a young child may reasonably expect that the mother will not be far
distant and will upon witnessing the accident suffer emotional trauma.” Id. at 921. The court
stated that three factors should guide the determination whether alleged mental distress was
“reasonably foreseeable” in such circumstances: (1) the proximity of the plaintiff to the
incident; (2) whether the mental distress was contemporaneous with the plaintiff’s
observation of the incident; and (3) the blood relationship between the plaintiff and the
victim. Id. at 919-20.
11
The California Supreme Court has subsequently added limiting requirements to the
“foreseeability” test articulated in Dillon. See Thing v. La Chusa, 771 P.2d 814, 829-30 (Cal.
1989) (holding that “a plaintiff may recover damages for emotional distress caused by
observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1)
is closely related to the injury victim; (2) is present at the scene of the injury producing event
at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result
suffers serious emotional distress”).
16
The zone-of-danger rule provides a circumscribed alternative to
the apparently sweeping liability recognized in Dillon v. Legg,
and does so within the framework of traditional and accepted
negligence principles by using an objective test of whether the
plaintiff was unreasonably threatened with bodily harm by the
conduct of the defendant. . . .
Id. at 1073 (quoting Bovsun, 461 N.E.2d at 848). See also id. at 1066 (citing with approval
a similar rule in the R ESTATEMENT (S ECOND) OF T ORTS § 436 (2) (1977)). Following our
decision in Williams, we have emphasized that the “zone of physical danger test” is the “sole
means for assessing a claim for damages for negligently inflicted emotional distress.”
Washington v. John T. Rhines Co., 646 A.2d 345, 347-48 (D.C. 1994).
C. Application of the “Zone of Physical Danger” Rule
Because Williams limits recovery to “direct” victims of the tortfeasor’s negligence,
i.e., those who are distressed by “fear for his [or her] own safety as opposed to the safety of
a third party,” 572 A.2d at 1066 n.12, see also supra note 7, we have subsequently denied
claims brought by bystanders who witnessed harm to another, but did not fear for their own
safety. See Johnson v. District of Columbia, 728 A.2d 70 (D.C. 1999) (mother’s distress as
a result of watching her child being scalded in bathtub); Washington, 646 A.2d at 348 (claim
against funeral home for mishandling of spouse’s corpse); McKethean v. Washington Metro.
Area Transit Auth., 588 A.2d 708 (D.C. 1991) (bystander distress after witnessing several
17
relatives die in automobile accident at bus stop). And because Williams required that the
victim be in a “zone of physical danger” even when claims of emotional distress were
brought by “direct” victims of negligent acts, we have permitted such claims to proceed only
in those instances where there was evidence that the plaintiff’s concern for her own safety
or health arose from being in a “zone of physical danger” created by the defendant’s
negligent conduct: where the plaintiff was in close proximity to gunshots that killed her son,
District of Columbia v. Evans, 644 A.2d 1008 (D.C. 1994); where there was evidence that
the plaintiff might have consumed a foreign object (a worm) in her food, Sowell v. Hyatt
Corp., 623 A.2d 1221 (D.C. 1993); and where the pregnant plaintiff had undergone X-rays
and a gallbladder operation causing her to fear injury to herself and the twins she had been
carrying, Jones, 589 A.2d 419.12 In every other case, we rejected claims made by direct
victims because they failed to establish that they were placed in physical danger by the
defendant’s alleged negligence. See Minch v. District of Columbia, 952 A.2d 929, 941-42
(D.C. 2008) (rejecting claim brought by murder suspect who alleged emotional distress as
a result of mistreatment during negligent police investigation); Jane W. v. President & Dirs.
of Georgetown Coll., 863 A.2d 821, 828 (D.C. 2004) (rejecting claim brought by patients
12
Williams made clear that a direct victim who was in the “zone of physical danger”
may also seek compensation for distress caused by “fear for the safety of a member of the
plaintiff’s immediate family who was endangered by the negligent act.” 572 A.2d at 1069.
The principle underlying this rule is that “[h]aving breached a duty of care to the plaintiff,
the negligent tortfeasor should be held liable for all resultant damages.” Id. (citing Bovsun,
461 N.E.2d at 847; R ESTATEMENT (S ECOND) OF T ORTS, supra, § 436 (3)).
18
after they were informed that a radiology technician had substituted certain syringes that
contained only saline solution for syringes that should have contained pain medication);
Drejza v. Vaccaro, 650 A.2d 1308, 1312 n.9 (D.C. 1994) (rejecting claim by rape victim
subjected to verbal abuse during investigation by police officer at police station); cf. Morgan
v. Psychiatric Inst. of Washington, 692 A.2d 417 (D.C. 1997) (recognizing emotional distress
claim brought by patient who argued that sexual intimacy with psychotherapist provided
sufficient evidence of actual physical injury to withstand motion for summary judgment).
In short, since Williams, we have applied the zone of physical danger test to all negligence
actions where the only injury claimed was mental or emotional distress, regardless of the
context in which the claim arose.13
III. Emotional Distress Damages in Established Relationships
In this appeal, appellant urges us to abandon our reliance upon the “zone of physical
13
A close reading of the facts and analysis in Williams might suggest that, once the
plaintiff’s claim had been rejected because she was not a direct victim (i.e., she did not fear
for her own health and safety), it was unnecessary to further require that she had been placed
in a “zone of physical danger.” In many cases, the two are linked, as the plaintiff’s distress
will have been caused by fearing for her own physical health or safety, as a result of having
been placed in physical danger. It is conceivable, however, that a claimant could be a direct
victim, but that her fear for her own safety could result from having been placed in a zone
of psychological rather than physical danger. As discussed in the text, we have interpreted
both aspects of Williams – the direct victim and zone of physical danger requirements – as
binding precedent and applied the two requirements across the board.
19
danger” test as the sole means of recovery for the tort of negligent infliction of emotional
distress.14 Specifically, appellant and amicus supporting his claim argue that recovery also
should be permitted in those cases where the negligent actor has a relationship or has
committed to an undertaking with the plaintiff of such nature that negligent performance of
a legal obligation to the plaintiff is very likely to cause serious emotional harm, and, in fact,
does so. The question is not whether the “zone of physical danger” rule should be jettisoned
and replaced with the proposed “relationship” or “undertaking” rule in every case. Rather,
the issue presented in this appeal is whether – in addition to permitting recovery based on the
“zone of physical danger” rule – the law should allow courts to conclude that a defendant has
assumed a duty to avoid inflicting emotional distress in certain cases where the underlying
relationship or undertaking is such that it is not only foreseeable, but especially likely, that
the defendant’s negligence will cause serious emotional distress to the plaintiff. For the
reasons we now discuss, we agree with appellant, and adopt a supplemental rule, as defined
in this opinion.
14
Appellant meets Williams’s other requirement that the claimant be a direct victim
of the tortious conduct, and so he does not challenge that aspect of the holding.
20
A. The Proposed Special Relationship or Undertaking Rule
Appellant’s argument that the “zone of physical danger” rule should not be the sole
route for recovery in all cases seeking damages for serious emotional distress finds support
in Section 46 of the draft R ESTATEMENT (T HIRD) OF T ORTS:
§ 46 Negligent Conduct Directly Inflicting Emotional Disturbance on Another
An actor whose negligent conduct causes serious emotional
disturbance to another is subject to liability to the other if the
conduct:
(a) places the other in immediate danger of bodily harm and the
emotional disturbance results from the danger; or
(b) occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional disturbance.
R ESTATEMENT (T HIRD) OF T ORTS § 46 (Tentative Draft No. 5, 2007) (hereinafter, “draft
Third Restatement”).15 Subsection (a) of Section 46, which refers to “immediate danger of
bodily harm,” corresponds to the Williams “zone of physical danger” rule. Subsection (b),
which refers to “specified categories of activities, undertakings, or relationships in which
15
Although we draw upon the draft Third Restatement’s Section 46 and commentary
in our analysis, we do not adopt the comments of the draft Restatement in their entirety; for
now we adopt only those comments of the draft Restatement that are expressly made a part
of this opinion.
21
negligent conduct is especially likely to cause serious emotional disturbance,” would
encompass claims, such as appellant’s, which arise from a doctor-patient relationship in
which the doctor negligently misdiagnosed the patient with a grave illness, with the likely
result that it would (and did) cause serious emotional distress. Thus, as articulated by the
drafters of § 46 of the draft Third Restatement, a rule that finds a duty based upon
“undertakings or relationships” is a supplement to – rather than a substitute for – the “zone
of physical danger” rule that permits recovery in the absence of such a relationship. Under
either test, only direct victims of the actor’s negligence can recover.16
Section 46 of the draft Third Restatement has evolved from the current version of the
Second Restatement, issued in 1977, which relies upon the plaintiff having suffered actual
physical injury as a limitation on potential claims for emotional distress. Indeed, the zone
of physical danger test set forth in the Second Restatement is more restrictive than the one
16
A different section of the draft Third Restatement addresses liability for emotional
distress to bystanders, i.e., those who suffer emotional distress that results not from fear for
their own safety, but from the injury and suffering of another person who is close to them.
Restatement § 47 provides: “An actor who negligently causes serious bodily injury to a third
person is subject to liability for serious emotional disturbance thereby caused to a person
who: (a) perceives the event contemporaneously, and (b) is a close family member of the
person suffering the bodily injury.” R ESTATEMENT (T HIRD) OF T ORTS, supra, § 47. This rule
is modeled after the rule adopted by the California Supreme Court in Dillon, 441 P.2d 912.
See R ESTATEMENT (T HIRD) OF T ORTS, supra, § 47 cmt. a. It arguably would permit the
claims that were rejected in McKethean, 588 A.2d 708, and Johnson, 728 A.2d 70. As noted,
appellant’s claim does not present the issue of liability to bystanders and we therefore do not
address it in this opinion, other than to note that it is a separate but related issue.
22
we have adopted in this jurisdiction, as it requires that the plaintiff suffer physical injury as
a result of the alleged emotional distress.17
In Williams, when we cited the Second
Restatement’s endorsement of the zone of physical danger rule as support for our decision
to abandon the physical impact requirement, see 572 A.2d at 1066, we did not decide
“whether one who is physically endangered by [a] defendant’s negligence may recover
for . . . emotional distress in the absence of physical injury.” Id. at 1067. But in 1991, the
year after we decided Williams, we clarified that our definition of the tort of negligent
infliction of emotional distress does not require that the plaintiff suffer physical injury.
Jones, 589 A.2d at 424.
The draft Third Restatement, which has been under consideration since 1996, removes
the physical injury requirement from the “zone of physical danger” rule (as we did in 1991)
and adds “specified categories of activities, undertakings, or relationships” as additional
bases for establishing a defendant’s liability for emotional distress. These changes are
intended to reflect developments in the law, specifically the “line of cases [that] recognizes
17
The relevant section of the Second Restatement provides: “If the actor’s conduct
is negligent as creating an unreasonable risk of causing bodily harm to another otherwise
than by subjecting him to fright, shock, or other similar and immediate emotional
disturbance, the fact that such harm results solely from the internal operation of fright or
other emotional disturbance does not protect the actor from liability.” R ESTATEMENT
(S ECOND) OF T ORTS, supra, § 436 (2). The Second Restatement makes clear that some
physical injury is required in order to impose liability: “If the actor’s conduct is negligent
. . . and it results in . . . emotional disturbance alone, without bodily harm or other
compensable damage, the actor is not liable for such emotional disturbance.” Id. § 436A.
23
an exception to the general no-liability rule when an actor undertakes to perform specified
obligations, engages in specified activities, or is in a specified relationship fraught with the
risk of emotional disturbance.” R ESTATEMENT (T HIRD) OF T ORTS, supra, § 46 cmt. b. The
drafters justify this additional basis for establishing a duty on the ground that “[l]imiting
recovery for emotional harm to those in the relationship or those for whom the undertaking
or activity was being performed limits the scope of liability for negligently inflicted
emotional harm, thereby avoiding concern about indeterminate and excessive liability.” Id.
Professor Dobbs’s modern treatise on torts explains why such a rule addresses the
problem of potentially infinite liability that has been of central judicial concern in emotional
distress cases:
When the defendant owes an independent duty of care to the
plaintiff, there is no risk of unlimited liability to an unlimited
number of people. Liability turns solely on relationships
accepted by the defendant, usually under contractual
arrangement. Consequently, the duty extends only to those for
whom the contract was made. . . . For these two reasons, the
zone of danger and contemporaneous awareness rules are not
needed to limit liability to an appropriate sphere.
P ROSSER AND K EETON ON T ORTS, supra, § 312, at 849 (discussing the rule adopted by
California in Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992)). We agree with the draft
Third Restatement and Professor Dobbs’s observation that no special rule (such as the zone
24
of physical danger test) is necessary to guard against the risk of imposing a duty that might
be unlimited or unreasonable when emotional harm is especially likely to be caused as a
direct result of negligent performance of a duty to avoid such harm owed to a specific person.
Such a duty can, but need not, arise from a contractual arrangement between the parties.18
The key point is that the requirement of a special relationship between the parties or
undertaking by the defendant to the plaintiff limits the scope of the defendant’s potential
liability to identifiable persons, rendering the “zone of physical danger” requirement
unnecessary to achieve that purpose.
Indeed, a number of courts around the country have held that a defendant has a duty
to avoid causing emotional distress to a plaintiff if the defendant has undertaken an
18
Although the District of Columbia does not allow consequential damages for
emotional distress in a breach of contract action, see Howard Univ. v. Baten, 632 A.2d 389
(D.C. 1993), the existence of a contract can be evidence of the special relationship or
undertaking that may give rise to tort liability. The existence of a contractual relationship vel
non does not determine whether a claim for emotional distress damages will be cognizable
in tort; that will depend on whether the plaintiff can prove the elements of the tort of
negligent infliction of emotional distress that we set out in this opinion. The extent to which
tort claims could be disclaimed, liquidated or otherwise limited by contract is beyond the
scope of this opinion. We note, however, that we generally permit exculpatory clauses so
long as they do not purport to waive liability for gross negligence, fraud or other willful
wrongful conduct. See Carleton v. Winter, 901 A.2d 174, 181 (D.C. 2006). Such clauses
may not be valid, however, in the context of transactions that affect the public interest. See
Wolf v. Ford, 644 A.2d 522, 525-26 (Md. 1994) (citing Tunkl v. Regents of Univ. of Cal., 383
P.2d 441, 495-46 (Cal. 1963) (holding that release of patient’s claims for negligent and
wrongful conduct in hospital’s pre-admission form was against public policy and not
enforceable)).
25
obligation to benefit the plaintiff and if that undertaking, by its nature, creates not only a
foreseeable, but an especially likely, risk that the defendant’s negligent performance of the
obligation will cause serious emotional distress.
This means that not every existing
relationship or undertaking will suffice to create a duty to avoid the negligent infliction of
emotional distress. Thus, courts consider the nature of the relationship between the parties
and the likelihood that emotional distress will be caused by negligent performance of a
recognized obligation before permitting stand-alone claims for emotional distress. See, e.g.,
Taylor v. Baptist Med. Ctr., Inc., 400 So. 2d 369, 374 (Ala. 1981) (“[W]here the contractual
duty or obligation is so coupled with matters of mental concern or solicitude, or with the
feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or
reasonably result in mental anguish or suffering, it is just that damages therefore be taken
into consideration and awarded.” (quoting Stead v. Blue Cross-Blue Shield of Alabama, 346
So. 2d 1140, 1143 (Ala. 1977)));19 Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995)
(“[W]henever a defendant stands in a contractual or fiduciary relationship with the plaintiff
and the nature of this relationship imposes on the defendant a duty to refrain from conduct
that would foreseeably result in emotional harm to the plaintiff, the plaintiff need not
establish a physical injury in order to recover for the negligent infliction of emotional
distress.”); Burgess, 831 P.2d at 1202 (noting that “a cause of action to recover damages for
19
Alabama does not recognize the separate tort of negligent infliction of emotional
distress. Allen v. Walker, 569 So. 2d 350 (Ala. 1990).
26
negligently inflicted emotional distress will lie . . . in cases where a duty arising from a
preexisting relationship is negligently breached” and explaining that the “[f]oreseeability and
certainty of [a] mother’s [emotional] injury in labor and delivery cases” is a policy
consideration that favors liability); Corgan v. Muehling, 574 N.E.2d 602, 607 (Ill. 1991)
(“[T]he nature of the therapist-patient relationship gives rise to duty on behalf of the therapist
to refrain from activity which carries with it a foreseeable, and unreasonable, risk of causing
emotional or mental harm to the patient.”); Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa
1990) (noting an exception to the rule requiring physical impact where there is a contract and
“the nature of the relationship between the parties is such that there arises a duty to exercise
ordinary care to avoid causing emotional harm”);20 Clomon v. Monroe City Sch. Bd., 572 So.
2d 571, 575 (La. 1991) (discussing “rules or decisions permitting recovery for emotional
distress from a tortfeasor who owed the plaintiff a special, direct, duty created by law,
contract, or special relationship”); Menorah Chapels v. Needle, 899 A.2d 316, 324 (N.J.
Super. Ct. App. Div. 2006) (allowing recovery based on contract “where the subject-matter
of the contract is such as to make it certain or reasonably probable that the parties had in
20
Iowa courts have recognized emotional distress claims relating to: a mother’s
distress caused by negligent treatment during the birth of her premature child, Oswald, 453
N.W.2d at 639; negligent transmission and delivery of telegrams announcing the death of a
close relative, Cowan v. W. Union Tel. Co., 98 N.W. 281 (Iowa 1904), Mentzer v. W. Union
Tel. Co., 62 N.W. 1 (Iowa 1895); and the negligent performance of funeral services, Meyer
v. Nottger, 241 N.W.2d 911 (Iowa 1976); cf. Overturff v. Raddatz Funeral Servs., Inc., 757
N.W.2d 241 (Iowa 2008) (plaintiff’s claims for emotional distress barred because plaintiff
had no contractual relationship with funeral home).
27
contemplation, at the time of the making of the contract, a pecuniary satisfaction for the
anguish and distress of mind ensuing from a breach of its terms”);21 Johnson v. State, 334
N.E.2d 590, 592 (N.Y. 1975) (recognizing a cause of action where there is “an especial
likelihood of genuine and serious mental distress, arising from . . . special circumstances,
which serves as a guarantee that the claim is not spurious”); Curtis v. MRI Imaging Servs.
II, 956 P.2d 960, 963 (Or. 1998) (“Where the standard of care in a particular medical
profession recognizes the possibility of adverse psychological reactions or consequences as
a medical concern and dictates that certain precautions be taken to avoid or minimize it, the
law will not insulate persons in that profession from liability if they fail in those duties.”);
Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex. 1993) (“certain relationships may give rise to a
duty which, if breached, would support an emotional distress award”);22 Larsen v. Banner
Health Sys., 81 P.3d 196, 203 (Wyo. 2003) (recovery exists “in circumstances involving
contractual services that carry with them deeply emotional responses in the event of breach”).
21
See also Muñiz v. United Hosps. Med. Ctr. Presbyterian Hosp., 379 A.2d 57, 58
(N.J. Super. Ct. App. Div. 1977) (recognizing possibility of claim for relief based on
violation of an implied contract with the hospital where parents alleged that hospital
negligently informed them of the death of their child).
22
Accord Freeman v. Harris Cnty., 183 S.W.3d 885, 890 (Tex. Ct. App. 2006)
(noting that “[s]pecial relationship cases generally have three common elements: (1) a
contractual relationship between the parties, (2) a particular susceptibility to emotional
distress on the part of the plaintiff, and (3) the defendant’s knowledge of the plaintiff’s
particular susceptibility to the emotional distress, based on the circumstances”); but see
Johnson v. Methodist Hosp., 226 S.W.3d 525, 530 (Tex. Ct. App. 2006) (holding that mother
who was misdiagnosed as being HIV positive during her eighth month of pregnancy and
subsequently treated for HIV did not have a “special relationship” with the hospital that was
responsible for the misdiagnosis and delivered her child).
28
These cases recognize the principle that “[w]hen defendants have undertaken care for the
plaintiff that includes care for emotional well-being, a ground for liability comes into play
that is far different from the ground upon which stranger liability is based. The undertaking
itself should determine the defendant’s duty and its extent, just as it does in other tort cases
where liability is based on undertakings.”
Dan B. Dobbs, Undertakings and Special
Relationships in Claims for Negligent Infliction of Emotional Distress, 50 A RIZ. L. R EV. 49,
54 (2008) (hereinafter Undertakings and Special Relationships). In situations where such
an undertaking is established, the plaintiff can recover damages for emotional distress caused
by the defendant’s breach of a duty of care that is defined in accordance with traditional
precepts of negligence law; for example, where there is an allegation of medical malpractice,
by reference to the national standard of care. See, e.g., Cárdenas v. Muangman, 998 A.2d
303, 306 (D.C. 2010).
B. Shortcomings of the “Zone of Physical Danger” Rule Where There Is an Established
Relationship or Undertaking
Williams is correct that “it is rational to postulate that the tortfeasor owes a duty of
care only to those who are physically endangered” by the negligent act, 572 A.2d at 1072
(emphasis added), and we reiterate that it is the general rule in light of the policy concern
against the imposition of potentially unlimited liability for emotional harm.
We are
convinced, however, that physical endangerment is not the most reasonable method of
29
determining the tortfeasor’s duty in all cases, and that it can lead to (and has led to)
inconsistent and untoward results in some cases.23
As already discussed, Williams and its progeny dispensed with the notion that
emotional distress must be accompanied by physical injury if the plaintiff is to recover
damages, see Williams, 572 A.2d at 1067; Jones, 589 A.2d at 424, but required the plaintiff
to show that she was in physical danger and that she reasonably feared for her own safety as
a precondition for recovery of mental distress damages, as a prudential safeguard against the
imposition of limitless liability for emotional harm.
In certain cases, however, application of the “zone of physical danger” rule has led
to results that depart from those that would have obtained under the “framework of
traditional and accepted negligence principles” we cited in support of our decision to adopt
the rule. Williams, 572 A.2d at 1073 (quoting Bovsun, 461 N.E.2d at 848). In Washington,
for example, we upheld the dismissal of a widow’s complaint alleging that she had suffered
emotional distress as a result of a funeral home’s mishandling of her dead husband’s corpse
in preparation for an open-casket service. 646 A.2d at 345-47. Even though the funeral
home owed a defined duty to the plaintiff established by contract and it was foreseeable and
likely that she would suffer emotional injury as a result of the funeral home’s failure to
23
See generally Undertakings and Special Relationships, supra, at 57-58.
30
properly embalm her husband’s body,24 we concluded that she had not set forth a cognizable
claim based on the physical zone of danger test set forth in Williams because the complainant
could not allege that she had been in physical danger or had feared for her own safety. Id.
at 348-49. Application of the physical zone of danger test in Washington not only deprived
the plaintiff from presenting her case even though her complaint pled all the traditional
requirements for a finding of liability for negligence – duty, breach, causation and damages
– but also effectively immunized the funeral home from liability for the injury most likely
to be caused by its negligence: serious emotional distress in a situation fraught with
emotional feelings of sorrow and loss.25
24
According to the widow’s complaint against the funeral home, when her husband’s
body arrived for an open-casket memorial service in Texas, “the clothing and the inside of
the shipping case were drenched with fluid; there was an offensive odor of embalming and
body fluids; there were extreme skin slips, blisters, and discolorations on several parts of the
body; the body had begun to turn green and was rapidly decomposing; there was swelling in
the face and neck areas; and a catheter tube which had been inserted in the deceased’s body
during his hospitalization had not been removed.” 646 A.2d at 346.
25
Professor Dobbs discusses Washington, which he assesses as follows: “To make
[the zone of danger] the basis for exculpating a gross mistreatment of the plaintiff’s late
husband is to say that undertakers are always immune from a duty of care. The undertaking
was to the plaintiff and she was within the zone of emotional danger recognized by that
undertaking. Cases like this would not survive a regime of law based upon a fair assessment
of the duty undertaken by the mortuary, even though strangers who undertook nothing would
be under no duty at all.” Undertaking and Special Relationships, supra, at 58. Prosser and
Keeton likewise identify “two special groups” of cases where courts have allowed recovery
for mental distress alone: those where a telegraph company has negligently transmitted a
message, “especially one announcing death,” and those involving the mishandling of a corpse
by a funeral home or mortuary. P ROSSER AND K EETON ON T ORTS, supra, § 54, at 362.
“What all of these cases appear to have in common is an especial likelihood of genuine and
serious mental distress, arising from the special circumstances, which serves as a guarantee
(continued...)
31
Three other cases are illustrative of the shortcomings of the zone of physical danger
rule when applied to situations where there is a duty arising from an existing relationship.
In Jones, we applied the “zone of physical danger” rule to a claim for emotional distress
brought by a patient against the doctor and hospital that she claimed had negligently
performed several X-rays as well as gallbladder surgery upon her while she was pregnant,
in violation of the national standard of care. 589 A.2d at 420.26 Had the patient claimed
damages for physical injury as well as emotional distress, she would have been required to
establish the usual elements of a negligence claim: that the defendants owed her a duty of
care, that the applicable standard of care was breached, and that this breach of the standard
of care was the cause of her injury. See, e.g., Giordano, 968 A.2d at 498 & n.7. In Jones,
the existence of the defendants’ duty – which provides the “foundation of modern negligence
law,” N.O.L. v. District of Columbia, 674 A.2d 498, 499 n.2 (D.C. 1995) – was easily
25
(...continued)
that the claim is not spurious.” Id. (emphasis added).
26
When she arrived at the hospital, Jones informed the staff that she was twenty-five
years old, that it had been about two months since her last period, and that she had stopped
using birth control. 589 A.2d at 421. The hospital did not, however, administer a pregnancy
test before she underwent the X-rays and gall bladder surgery, an omission which Jones
alleged violated the applicable standard of care. Id. Approximately two weeks later, Jones
learned that she was pregnant with twins. Id. The twins were born healthy; however, during
her pregnancy Jones suffered emotional distress and anxiety as a result of her concern that
the procedures had harmed her children and her fear that she might experience a spontaneous
abortion or other complications, which were established risks. Id. Jones filed a complaint
against her treating physician and hospital, alleging that they “were negligent in subjecting
her to radiation without first performing appropriate tests for pregnancy or taking an adequate
history that would have revealed that she was pregnant.” Id.
32
established by reference to the doctor-patient relationship between the plaintiff and the
defendants. See Jones, 589 A.2d at 421 (assuming a duty in analyzing patient’s claim of
medical malpractice based on lack of informed consent). But because the plaintiff’s injuries
were exclusively emotional in nature, and even though we dispensed in that case with the
requirement of showing physical manifestation of emotional distress, id. at 424, we were
nonetheless compelled to set aside the parties’ reasonable expectations flowing from the
underlying doctor-patient relationship and, instead, analyzed the claims under the “zone of
physical danger” test. We concluded that either the plaintiff’s exposure to the X-rays or
undergoing the gallbladder surgery while pregnant sufficed to meet the zone of physical
danger test based on a theoretical risk of physical harm – even though she did not in fact
suffer any physical injury. Id. at 422-24.
Similarly, in Morgan, 692 A.2d 417, we considered whether to apply the “zone of
physical danger” test to a claim brought by a patient against her former therapist who
breached the national standard of care by engaging in a sexual relationship with her while
she was his patient. According to the plaintiff, she did not have the ability to consent to the
sexual intimacy due to her drug addiction and the psychotherapist’s manipulation of the wellunderstood “transference phenomenon,” which leads a patient to project feelings under
discussion onto the psychotherapist. Id. at 421 & n.13. Relying on the old “physical impact”
rule, we concluded that the zone of physical danger test did not need to be met because the
33
plaintiff had alleged actual physical injury in the form of “unconsented” sexual contact. Id.
at 421.27 Although the particular circumstances in Morgan allowed the claim for negligent
infliction of emotional distress to proceed without the need to satisfy the zone of physical
danger rule, it must be recognized that breach of a psychotherapist’s duty of care is less likely
to place the patient in the “zone of physical danger” envisioned by Williams than to cause
mental distress to a patient vulnerable to her therapist’s breach of duty. That emotional
injury could be severe even if unaccompanied by physical impact or endangerment. See
Corgan, 574 N.E.2d at 606 (allowing patient’s claim for “psychological malpractice” to
proceed because the plaintiff had alleged facts sufficient to establish that the defendant
psychologist “owed a duty to the plaintiff that should be enforced”); cf. P ROSSER AND
K EETON ON T ORTS, supra, § 311, at 847 (criticizing cases that “treat physical danger as the
single basis for emotional harm and at the same time in effect ignore the duties undertaken
by health care professionals”).
Finally, in Sowell, a restaurant patron claimed to have suffered emotional distress
27
The plaintiff in Morgan filed a claim against her former psychotherapist and the
Psychiatric Institute of Washington, alleging that she had suffered emotional distress as a
result of a sexual affair with her psychotherapist that lasted for over a year and resulted in
a pregnancy. 692 A.2d at 419. The plaintiff alleged that she had become depressed when
the psychotherapist ended their romantic relationship and that she could not sleep and had
developed an eating disorder. Id. She also asserted that she suffered emotional and mental
distress during her pregnancy and after the birth of their child. Id.
34
upon finding a worm in her lunch. Sowell, 623 A.2d at 1221.28 Rather than analyzing the
case in light of the established duty that a restaurant owes to its patrons, see Novak v. Capital
Mgmt. & Dev. Corp., 371 U.S. App. D.C. 526, 531, 452 F.3d 902, 907 (2006) (“It is
fundamental and well-settled that a business invitor has a duty of care to its patrons while
they are on its premises.”), or considering whether the proper scope of that duty entails care
for a patron’s emotional well-being, application of the zone of physical danger rule led to
reversal of the trial court’s grant of summary judgment for the defendant because “[e]ating
contaminated food is evidence of physical endangerment.” Sowell, 623 A.2d at 1225, 1226.
We find it difficult to reconcile the different results in Washington (the funeral home case)
and Sowell with society’s expectations of the respective duties of the service providers in
those cases and the magnitude of emotional harm reasonably likely to result from the
defendants’ negligence in performing those duties. Their divergent results are due to the
application of the zone of physical danger rule as the sole vehicle for redress, without
examination of the underlying relationship between the parties.
In Washington, Jones, Morgan, and Sowell there was an existing, legally recognized
relationship between the parties, and the defendant owed a duty to the plaintiff, that would
28
In Sowell, the restaurant patron noticed that there was a worm in a spoonful of rice
that she was about to eat. 623 A.2d at 1222. Although she did not know whether she had
eaten any portion of the worm, she began to vomit repeatedly. She was diagnosed with
having an esophageal tear due to the vomiting and continued to have an “adverse reaction”
to rice and to other foods that “cause[d] substantial recollection” of the incident. Id.
35
have offered traditional guidance to judicial determination whether the imposition of liability
for the emotional distress resulting from the defendant’s negligent conduct would be fair and
reasonable under the circumstances. It would have been more in keeping with “accepted
negligence principles,” Williams, 572 A.2d at 1073, to examine the nature of the defendant’s
undertaking to the plaintiff and whether serious emotional distress was a likely consequence
if the defendant breached that obligation, than to focus on the search for (sometimes elusive)
“evidence of physical endangerment,” Sowell, 623 A.2d at 1226,29 as the best means of
recognizing the existence of a duty to avoid inflicting emotional distress.30 Similarly,
analysis of the claims that were dismissed in Minch, Jane W., and Drejza because the
plaintiffs in those cases were not in a zone of physical danger, discussed supra, would have
included a further evaluation of the nature of the underlying relationship between the
29
Recognizing that true emotional distress should be compensable, Maryland courts
have interpreted the “physical injury” requirement to include any injury that is capable of
“objective determination.” Vance v. Vance, 408 A.2d 728, 734 (Md. 1979). Thus, “the term
‘physical’ is not used in its ordinary dictionary sense.” Id. at 733-34. In Vance, which has
been described as “the definitive Maryland case on mental distress as the basis of damages
in negligent tort actions,” Belcher v. T. Rowe Price Found., Inc., 621 A.2d 872, 884 (Md.
1993), the Court of Appeals of Maryland concluded that the plaintiff could recover because
she developed an “objectively manifested, definite nervous disorder” after she found out that
her marriage of nearly twenty years was void as a result of her “husband’s” failure to obtain
a divorce from his previous wife. Vance, 408 A.2d at 734. The court found that this
“nervous disorder” satisfied Maryland’s “physical injury” requirement.
30
There is a question whether the elements of the zone of physical danger test were
factually supported in Sowell, as the plaintiff could not show that she ate the worm or that
doing so would have caused actual physical injury, rather than revulsion. If the elements
were factually supported, the claim for emotional distress would be proper under Williams,
even if it would fail under the supplemental rule we adopt in this opinion.
36
plaintiffs and defendants, along with consideration of public policy concerns applicable in
those cases.31
C. Consistency with General Principles of Negligence
The “zone of physical danger” test is a special rule that was adopted to permit some
claims of negligent infliction of emotional distress – those that are closely linked to potential
physical injury – while avoiding the socially unacceptable risk of imposing liability for
causing mental distress to a potentially unlimited number of strangers. A rule that determines
the defendant’s duty to avoid emotional distress by reference to the nature of the defendant’s
relationship with or undertaking to identifiable persons is not a specially designed construct,
but one that more closely (although not entirely) aligns with longstanding general principles
regarding the tort of negligence. As discussed above, we regularly rely on the concepts of
relationships and undertakings to determine the scope of the defendant’s duty in physical
injury cases. See, e.g., Bd. of Trs., 974 A.2d at 870-75 (noting that “[t]here is general support
for the practice of confining foreseeability questions to the proximate cause analysis and
31
Minch and Drejza involved police officers in the performance of official
investigatory duties, 952 A.2d at 941-42; 650 A.2d at 1314; in Jane W., the court expressly
referred to public policy reasons inherent in the hospital’s mass mailing to notify patients –
which distressed some of the recipients – of a hospital employee’s misdeeds concerning their
medication. 863 A.2d at 828.
37
basing the duty analysis solely on the relationship between the parties”).32 Because “[m]ental
injury is . . . no less a real injury than ‘physical’ pain,” P ROSSER AND K EETON ON T ORTS,
supra, § 54, at 360,33 we should analyze claims for emotional injury based on the principle
of duty, relying on undertakings and relationships, that we normally use to examine claims
for other types of negligently inflicted injury, unless there are compelling reasons to adopt
a different approach. In Jones, Morgan, and Sowell, discussed above, the breach alleged was
of an existing duty, but not all were of a nature that implicated the plaintiff’s emotional wellbeing or equally likely to lead to serious mental distress. In Jones, the patient had given the
hospital reason to think that she could be pregnant, from which the medical providers would
expect that the patient would have a heightened anxiety once contraindicated procedures
were performed, even if she was not, in fact, physically endangered. Similarly in Morgan,
where a psychotherapist is engaged to assist the patient with issues affecting the mind and
emotions, the therapist’s manipulation of those emotions to forge an intimate relationship and
32
Cf. Bd. of Trs., 974 A.2d at 871 (noting that, in the special category of injury
resulting from an intervening criminal act, “heightened foreseeability factors directly into the
duty analysis because a defendant is only liable for the intervening criminal acts of another
‘if the criminal act is so foreseeable that a duty arises to guard against it.’” (quoting
McKethean, 588 A.2d at 717)).
33
Mental injury is . . . no less a real injury than ‘physical’ pain; it
is not an independent intervening cause, but a thing brought
about by the defendant’s negligence itself . . . and while it may
be true that its consequences are seldom very serious unless
there is some predisposing physical condition, the law is not for
protection of the physically sound alone.
P ROSSER AND K EETON ON T ORTS, supra, § 54, at 360.
38
then break it, also would lead the psychotherapist to expect that the patient would be severely
distressed as a result, even if no physical harm was threatened. In Sowell, on the other hand,
although the restaurant owed a duty to exercise reasonable care in the preparation of food
served to its patrons and could be expected to anticipate that a patron would react with
revulsion at discovering a disgusting item in the food she was served, it was not charged with
safeguarding the emotional health of its customers, and would not be expected to foresee the
severe reaction of this particular customer who was not put at serious (if any) health risk. In
Washington, the services the funeral home was engaged to render were intended for the
comfort of the deceased’s surviving family and friends, and its negligence was alleged to
have caused severe distress to the widow that it should have known was likely to occur.
The recognition of liability for emotional harm, in the circumstances we describe here,
is in line with the rules that allow recovery for emotional injury outside the context of the tort
of negligent infliction of emotional distress. We routinely allow recovery for pain and
suffering as “parasitic” damages when the plaintiff’s emotional distress is caused by the
defendant’s invasion of another legally-protected interest, such as freedom from physical
injury.
See, e.g., Bond v. Ivanjack, 740 A.2d 968, 974-76 (D.C. 1999) (in medical
malpractice case arising from doctor’s failure to diagnose cancer, patient sought damages for
39
“mental anguish and emotional distress based on her fear of recurrence of her cancer”).34
Damages for emotional distress also are awarded as part of compensation for violation of
statutory and common law rights that result in foreseeable emotional distress. For example,
damages for mental distress are awarded incident to:
(1) the right to be free from
discrimination, see, e.g., Daka, Inc. v. McCrae, 839 A.2d 682, 691 (D.C. 2003) (considering
an employee’s common law claim for negligent supervision and statutory claim of retaliation
and concluding that “the sexual harassment by an unsupervised [employee] and the
retaliation by [the employer] that [the plaintiff] experienced are the stuff of which a claim
for humiliation and emotional harm is composed, and . . . the jury could properly find that
[the plaintiff] suffered actual and not speculative injury” (internal quotation marks omitted));
United Mine Workers of Am., Int’l Union v. Moore, 717 A.2d 332, 341 (D.C. 1998) (noting
that, in the context of the District of Columbia Human Rights Act, “[u]ndoubtedly, mental
anguish or emotional distress may be considered in awarding compensatory damages”); (2)
the common law right to be free from defamation, see Vassiliades v. Garfinckel’s, Brooks
Bros., 492 A.2d 580, 594 (D.C. 1985) (“A plaintiff whose private life is given publicity may
recover damages for the harm to her reputation or interest in privacy resulting from the
34
See also R ESTATEMENT (S ECOND) OF T ORTS, supra, § 47 cmt. b (“Where the actor’s
tortious conduct in fact results in the invasion of another legally protected interest, as where
it inflicts bodily harm, or imposes a confinement, emotional distress caused either by the
resulting invasion or by the conduct may be a matter to be taken into account in determining
the damages recoverable. In many instances there may be recovery for emotional distress as
an additional, or ‘parasitic’ element of damages in an action for such a tort.”).
40
publicity and also for the ‘emotional distress or personal humiliation . . . if it is of a kind that
normally results from such an invasion and it is normal and reasonable in its extent.’”
(quoting R ESTATEMENT (S ECOND) OF T ORTS, supra, § 652H cmt. b)); and (3) the tort of
breach of a confidential relationship, id.
We also allow a plaintiff to recover for loss of consortium that results from negligent
conduct toward his or her spouse, even where the spouse was not physically injured and the
plaintiff’s injuries are purely emotional. See Crowley v. N. Am. Telecomm. Ass’n, 691 A.2d
1169, 1175 (D.C. 1997) (“The resultant injury to the marriage by reason of the deprivation
of society, affection and conjugal fellowship is no less because it did not result from physical
harm to one spouse.”); Hitaffer v. Argonne Co., 87 U.S. App. D.C. 57, 60, 183 F.2d 811, 814
(1950), overruled on other grounds by Smither & Co. v. Coles, 100 U.S. App. D.C. 68, 242
F.2d 220 (1957) (“Consortium, although it embraces within its ambit of meaning the wife’s
material services, also includes love, affection, companionship, sexual relations, etc., all
welded into a conceptualistic unity.”). We have acknowledged that the negligent actor owes
an “independent duty” to a spouse with a right to the marital consortium. Hitaffer, 87 U.S.
App. D.C. at 66, 183 F.2d at 820; see also Massengale v. Pitts, 737 A.2d 1029, 1033 (D.C.
1999) (holding that plaintiff’s claim for loss of consortium can proceed even where the
injured spouse was contributorily negligent).
41
Viewed against the broad spectrum of cases that permit recovery for emotional
distress resulting from breach of an obligation owed to a particular person, we are hard
pressed to justify a blanket prohibition on recovery where such breach has been proven
simply because emotional distress is the only injury suffered. We conclude that the “zone
of physical danger” rule should not preclude a plaintiff’s recovery for negligently inflicted
emotional distress where other factors in an existing relationship – that we now set out in this
opinion – are more adequate to define, and also are adequate to limit, the defendant’s
responsibilities.35
IV. The Duty to Avoid Inflicting
Serious Emotional Distress
We hold that a plaintiff may recover for negligent infliction of emotional distress if
the plaintiff can show that (1) the defendant has a relationship with the plaintiff, or has
undertaken an obligation to the plaintiff , of a nature that necessarily implicates the plaintiff’s
35
We also allow a plaintiff to recover damages for emotional distress that results
from a defendant’s “intentional” or “reckless” conduct that is “extreme and outrageous.”
See, e.g., District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010) (stating the elements
for a claim of intentional infliction of emotional distress). In the intentional tort cases, the
actor’s conduct is directed to a specific person and “[t]he outrageousness of the defendant’s
conduct provides a guarantee that the mental disturbance is serious and not feigned.”
Williams, 572 A.2d at 1065 n.10 (quoting P ROSSER AND K EETON ON T ORTS, supra, § 12, at
57). The elements of the tort, in other words, circumscribe the number of potential claimants
and there is no risk of “limitless” liability. Therefore, the plaintiff alleging intentional
infliction of emotional distress does not have to show that there was a threat of physical
injury or actual physical injury. See Howard, 484 A.2d at 985.
42
emotional well-being, (2) there is an especially likely risk that the defendant’s negligence
would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions
of the defendant in breach of that obligation have, in fact, caused serious emotional distress
to the plaintiff. Whether the defendant breached her obligations is to be determined by
reference to the specific terms of the undertaking agreed upon by the parties or, otherwise,
by an objective standard of reasonableness applicable to the underlying relationship or
undertaking, e.g., in medical malpractice cases, the national standard of care.36
The
likelihood that the plaintiff would suffer serious emotional distress is measured against an
objective standard: what a “reasonable person” in the defendant’s position would have
foreseen under the circumstances in light of the nature of the relationship or undertaking.
In addition, the plaintiff must establish that she actually suffered “serious and verifiable”
emotional distress. Jones, 589 A.2d at 424. In the next sections we discuss two critical
elements of the duty to avoid negligent infliction of emotional distress: the nature of the
defendant’s relationship or undertaking and the serious emotional distress that must be likely
to be caused by the defendant’s negligence.
36
See, e.g., Morrison, 407 A.2d at 565 (adopting national standard of care for medical
professionals and hospitals); Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984) (“[T]he
plaintiff must establish through expert testimony the course of action that a reasonably
prudent doctor with the defendant’s specialty would have taken under the same or similar
circumstances.”); Kordas v. Sugarbaker, 990 A.2d 496, 501 (D.C. 2010) (noting that, where
applicable, expert testimony should come from physician who is specialized in the relevant
practice area rather than from physician who merely holds the relevant general Board
certification).
43
In the absence of such an undertaking or relationship between plaintiff and defendant,
the general rule continues to be that there is no freestanding duty to avoid the negligent
infliction of emotional distress to a “stranger”37 unless the actor’s negligent conduct has put
the plaintiff in danger of bodily harm, i.e., the Williams “zone of physical danger” rule that
recognizes that “a near miss may be as frightening as a direct hit.” 572 A.2d at 1067. We
emphasize that the issue addressed in Williams and that we further refine today is one of duty
vel non, an issue of law to be determined by the court as a necessary precondition to the
viability of a cause of action for negligence. See, e.g., Tolu, 945 A.2d at 601 (“[T]he
question of whether a defendant owes a duty to a plaintiff under a particular set of
circumstances is entirely a question of law that must be determined only by the court.”
(quoting Shannon, 696 A.2d at 1365)); see also P ROSSER AND K EETON ON T ORTS, supra, §
37 at 236. It is for the court to consider the relevant evidence and make a decision on the
pleadings, on summary judgment, or, where necessary, after a hearing. Once the court
determines the existence of a duty to avoid inflicting emotional distress, the other elements
of the cause of action – standard of care, breach, causation and damages – must be proven
to the finder of fact by a preponderance of the evidence, see Burke v. Scaggs, 867 A.2d 213,
217 (D.C. 2005); P ROSSER AND K EETON ON T ORTS, supra § 37, at 236-37, and the defendant
may present defenses, such as the plaintiff’s contributory negligence. But if the court
37
“Stranger” is used in the sense of “stranger liability” – the duty owed to a person
with whom there is no independent relationship or obligation with legally cognizable
consequences. See Undertakings and Special Relationships, supra, at 53-54.
44
determines there is no duty as a matter of law, the litigation comes to an end, and that
decision is a final order of the trial court.
A. The Nature of the Defendant’s Relationship or Undertaking
As discussed elsewhere in this opinion, we have determined that the zone of physical
danger test is not necessary to limit the number of potential claimants in all cases because the
supplemental rule we announce today contains a self-limiting principle based on the nature
of the defendant’s relationship with, or undertaking to, the plaintiff. See supra, pp. 23-24
and infra, pp. 58-59. We do not here intend to catalog all the undertakings or relationships
that give rise to a duty to avoid causing emotional distress.38 To propose such a listing at this
time could pre-empt claims that are not before us, a limitation in the scope of judicial
pronouncements that we have expressly rejected. See Carl v. Children’s Hosp., 702 A.2d
159, 160 (D.C. 1997) (per curiam) (en banc) (noting that prior recognition of “a very narrow
38
We do not read the reference in the draft Third Restatement § 46 (b) to “specified
categories of activities, undertakings or relationships” as implying that a court should identify
and delineate them all at once, as a legislature might do in drafting a statute; rather, as the
Restatement is a distillation of the common law that has developed, and is continuing to
develop, in this area, § 46 (b) refers to such “activities, undertakings or relationships” as
courts, over time, come to recognize as coming within the rule. “Although Restatements are
expected to aspire toward the precision of statutory language, they are also intended to reflect
the flexibility and capacity for development and growth of the common law. They are,
therefore, phrased not in the mandatory terms of a statute but in the descriptive terms of a
judge announcing the law to be applied in a given case.” T HE A MERICAN L AW INSTITUTE,
C APTURING THE V OICE OF THE A MERICAN L AW INSTITUTE (2005).
45
exception” to the employment at-will doctrine “should not be read in a manner that makes
it impossible to recognize any additional public policy exceptions . . . that may warrant
recognition”). The development of common law proceeds on a case-by-case incremental
basis, and it is on that solid factual ground that judicial opinions build on a framework for
analysis based on certain general precepts. As we did in Carl, we endeavor to set out
standards so that future claims can be properly assessed by the bench and bar. See id. at 162
(noting that to come within a “public policy exception” to the at-will employment doctrine,
exception must be “firmly anchored either in the Constitution or in a statute or regulation
which clearly reflects the ‘public policy’ being relied upon”).
We agree with Professor Dobbs that in order to satisfy the exception to the general
rule we set forth here, a relationship39 or undertaking must “implicate” the plaintiff’s
39
As we explain in the text, not all relationships will give rise to a duty to avoid
negligent infliction of emotional distress, as the law recognizes and imposes a duty of care
on many different types of relationships, not all of which necessarily implicate the emotional
well-being of the parties. See Undertakings and Special Relationships, supra, at 49 & n.1.
(referring to relationships involving “(1) carrier-passenger, (2) innkeeper-guest, (3) invitorinvitee or possessor of land open to the public and one lawfully upon the premises; (4)
employer-employee, (5) school-student, (6) landlord-tenant, and (7) custodian-ward”);
Vassiliades, 492 A.2d at 591-92 (noting that fiduciaries have a duty to “scrupulously honor
the trust and confidence reposed in them because” of fiduciary relationship); District of
Columbia v. Royal, 465 A.2d 367, 369 (D.C. 1983) (recognizing the District’s duty of care
for the protection of school children in its schools); Smith v. Safeway Stores, Inc., 298 A.2d
214, 216 (D.C. 1972) (recognizing duty of care owed by business invitor to invitee); Graham,
424 A.2d at 105 (recognizing duty of reasonable care owed by landlord to tenants with
respect to a building’s common areas); Kline v. 1500 Massachusetts Ave. Apartment Corp.,
(continued...)
46
emotional well-being. See Undertakings and Special Relationships, supra, at 49, 68. There
are some relationships, such as that of psychiatrist/therapist and patient, where care for the
emotional well-being of the patient is the very subject and purpose of the engagement, and
it can be said that the psychiatrist or therapist has undertaken to care for the patient’s
emotional well-being, making it especially likely that the therapist’s negligence will cause
the patient to suffer emotional distress.
See id. at 54; Corgan, 574 N.E.2d at 607
(recognizing that the “nature of the therapist-patient relationship gives rise to a duty . . . to
refrain from . . . causing emotional or mental harm to the patient”). Certain other doctorpatient relationships can be said to involve the care of not just physical illness or conditions,
but also of the mental and emotional distress that can result from physical ailments and,
indeed, can trigger, aggravate and impede the treatment and alleviation of illness and
symptoms. Because care for the body and the emotions are so interlinked, and patients often
are dependent on their physicians’ exercise of due care, they therefore are susceptible to
suffer emotionally as well as physically as a result of their physicians’ negligence. For these
reasons, most cases claiming negligent infliction of emotional distress have arisen – and we
think will continue to arise – in the context of doctor-patient relationships. In most of those
cases, there will have been some physical injury as well, and damages for emotional distress
(“pain and suffering”) may be awarded if the patient’s distress was proximately caused by
39
(...continued)
141 U.S. App. D.C. 370, 439 F.2d 477 (1970) (recognizing duty of innkeeper to guest).
47
the doctor’s negligence.
In the relatively small subset of cases where the patient suffers only emotional
distress, these claims will on the surface be indistinguishable from the usual medical
malpractice actions. But there is a further – and critical – limiting principle: it must be
“especially likely,” R ESTATEMENT (T HIRD) OF T ORTS, supra, § 46 (b), that there would be
serious emotional distress, i.e., a “deeply emotional response,” Oswald, 453 N.W.2d at 639,
in the event that the underlying obligation is breached.40 If an emotional response of such
magnitude is anticipated, a doctor would be expected, as a matter of reasonable care, to take
precautions to avoid causing serious emotional distress, just as a doctor would take care to
use sterile instruments in order to prevent a serious infection during the course of an
operation. See Curtis, 956 P.2d at 963 (holding that plaintiff had successfully stated a claim
for emotional distress where complaint alleged that “defendants were medical professionals
who owed a duty to plaintiff to identify and guard against predictable psychological reactions
or consequences – including claustrophobic reactions – to [an] MRI procedure”); Larsen, 81
P.3d at 203 (permitting claim for emotional distress by mother and daughter estranged for
40
As acknowledged by the draft Third Restatement: “Whatever courts say about
foreseeability in these cases, foreseeability cannot appropriately be employed as the standard
to limit liability for emotional harm.” R ESTATEMENT (THIRD) OF T ORTS, supra, § 46 cmt. f.
“For example, a doctor who negligently (and incorrectly) diagnoses a popular movie star or
professional athlete as having terminal cancer is not liable to the star’s fans who suffer
emotional disturbance upon hearing the diagnosis, even though such harm is clearly
foreseeable.” Id.
48
over forty years as a result of hospital’s negligent switching of babies in nursery).
We emphasize that because it must be especially likely that serious emotional distress
will result from negligent performance, not all cases of medical negligence, even if otherwise
actionable, will give rise to liability for infliction of emotional distress. Judges will
necessarily have to draw on their reservoir of knowledge of societal norms, as well as
evidence of professional and ethical standards and norms of practice. See, e.g., Curtis, 956
P.2d at 963 (noting that standard of care required that precautions be taken to “avoid or
minimize” psychological reaction to confinement during an MRI examination). There are
evident differences between the duty of a hospital or obstetrician whose negligence results
in death or permanent injury to a child during labor and delivery and thereby causes deep
distress in the mother, Burgess, 831 P.2d at 1199, 1203 (recognizing the “unique relationship
between mother and child during pregnancy and birth” and permitting mother’s claim for
emotional distress where “the mother’s emotional well-being and the birth of the child are
inextricably intertwined”); the duty of a doctor who negligently arrives at a late diagnosis of
cancer and leaves the patient with dread and uncertainty about the consequences of delayed
treatment, see Bond, 740 A.2d at 974-76; and the duty of a podiatrist who is engaged to treat
a patient for an ingrown nail, a responsibility that, we submit, is evidently not concerned with
the emotional well-being of the patient.
49
Although most cases for negligent infliction of emotional distress have arisen in the
context of doctor-patient relationships, courts have recognized the claim in other situations
where the emotional well-being of others is at the core of, or is necessarily implicated by,
the undertaking. For example, where the negligent performance of an undertaking causes
emotional pain associated with the death of a loved one as a result of a hospital’s false report
of death or a funeral home’s mishandling of a corpse, a claim for negligent infliction of
emotional distress is allowed because such damages are not only especially likely to be
caused by the breach but also because they may well be the only or most significant damages
resulting from the negligent conduct. See P ROSSER AND K EETON ON T ORTS, supra, § 53, at
362 (reviewing cases involving claims for negligent transmission of a death message and
mishandling of corpses), discussed in Washington, 646 A.2d at 352 (Schwelb, J., dissenting).
In those cases it cannot be said – as it can in the context of the therapist and patient – that the
funeral home or hospital expressly undertook to care for the emotional well-being of the
deceased’s widow, parent or child. Rather, that undertaking is implied, and fairly so, based
on the understanding of who is intended to benefit from the obligation: not the deceased, but
the deceased’s close survivors as they cope with their loss. As a result, it is especially likely
that failure to adhere to reasonable care in fulfilling obligations related to the deceased with
competence and dignity, e.g., a mortuary’s obligation to embalm and transport the body
properly or the hospital’s obligation to accurately notify a relative that a loved one has died
while in the hospital’s care, will result in serious emotional distress. In these cases, the
50
consequence of serious emotional distress follows ineluctably from the breach.
A similar argument could be made with respect to persons who are appointed to act
as guardians and counsel for those who are especially vulnerable: children, the elderly, and
the disabled. See R ESTATEMENT (T HIRD) OF T ORTS, supra, § 46 cmt. d (referring to
relationships “where one person is in a position of power or authority over the other and
therefore has greater potential to inflict emotional harm”). In determining whether such
appointments comprise a duty to care for the emotional well-being of wards and clients, a
court should weigh several factors, including the statutory, professional and ethical standards
applicable to the defendant’s activities establishing the responsibilities the defendant can be
said to have accepted and to which she should be held accountable;41 the nature of the
interests of the ward or client that the guardian or counsel is obligated to further and protect
(whether financial, legal or business matters unlikely to implicate a ward’s emotional wellbeing, or questions involving health, independence and conditions affecting personal dignity
that might implicate a ward’s emotional well-being), and relevant policy considerations, such
as the need to have a pool of qualified persons willing to be appointed to such positions and
the availability of insurance or other options for risk-management of potential claims for
41
See, e.g., with respect to guardians, D.C. Code § 21-2047(a)(1); S UPERIOR C OURT
OF D ISTRICT OF C OLUMBIA, P ROBATE A TTORNEY P RACTICE S TANDARD 6 - G UARDIAN; and
D.C. R. Prof. Conduct 1.14 (Client with diminished capacity); see generally In re Orshansky,
804 A.2d 1077, 1096 (D.C. 2002).
51
emotional distress.
As cases from other courts suggest, moreover, many other relationships, even if they
involve fiduciary obligations, generally will not come within the rule, because neither the
purpose of the relationship nor the fiduciary’s undertaking is to care for the plaintiff’s
emotional well-being; rather the object of the engagement is to obtain a financial,
commercial or legal objective, even if its non-attainment due to the fiduciary’s negligence
is emotionally distressing to the client. See Reed v. Mitchell & Timbanard, P.C., 903 P.2d
621, 626 (Ariz. Ct. App. 1995) (refusing to impose duty to avoid negligent infliction of
emotional distress on lawyer who undertook to represent client in a financial matter);
Lawrence v. Grinde, 534 N.W.2d 414 (Iowa 1995) (same, bankruptcy attorney); Rathgeber
v. James Hemenway, Inc., 69 P.3d 710, 718 (Or. 2003) (noting that “real estate professional
malpractice” is not within the exception even though “[i]t is always foreseeable that some
emotional harm might result from the negligent performance of real estate professional
services, as it might from legal, accounting, or other varieties of professional malpractice”).
In these cases, it cannot be said that the plaintiff’s emotional well-being is necessarily
implicated by the defendant’s undertaking or relationship with the plaintiff. Similarly,
emotional distress resulting from negligently caused injury to personal property, including
pets and other animals, has not been recognized to state a viable claim. See R ESTATEMENT
(T HIRD) OF T ORTS, supra, § 46 cmt. j.
52
We caution again that this is not intended to be an exclusive catalog of relationships
or undertakings that may sustain viable claims for negligent infliction of emotional distress,
nor is it meant to categorically exclude certain types of relationships or undertakings – the
determinative factor will always be whether the facts of the particular case show that the
essential elements of the duty are presented: (1) a relationship or undertaking to the plaintiff
that necessarily implicates the plaintiff’s emotional well-being, and (2) the special likelihood
that the defendant’s negligence in the course of performing obligations pursuant to such
relationship or undertaking will result in emotional distress, see supra pp. 41-42, that, as we
now discuss, must be “serious” emotional distress.
B. Serious Emotional Distress
Because the duty to avoid inflicting emotional distress is tethered to the obligation of
the defendant pursuant to an undertaking or relationship, and compliance with the obligation
in tort is usually measured against an objective standard,42 it is also appropriate to measure
the likelihood of emotional harm against a “reasonable person” standard in most cases.43
42
Where the undertaking is contractual, the terms of the parties’ contract may define
the scope of the obligation and, possibly, the resulting liability for breach. See supra n.18.
43
For example, it is especially likely that a therapist’s disclosure of highly personal
information revealed by a patient who feels vulnerably exposed during therapy sessions
(continued...)
53
This is consistent with the draft Third Restatement, which states that the requirement for
“serious” emotional disturbance has both a subjective and an objective component:
[T]he stimulus must be one that would cause reasonable persons
to suffer serious emotional disturbance. Thus, there is a
subjective and objective component to this requirement. An
unusually susceptible person may not recover if an ordinary
person would not have suffered serious emotional disturbance.
A person may nevertheless recover for all harm caused, even if
more serious because of the predisposition or special
vulnerability of the person, if the stimulus is sufficient to cause
a reasonable person to suffer serious emotional disturbance.
R ESTATEMENT (T HIRD) OF T ORTS, supra, § 46 cmt. i; see Drejza, 650 A.2d at 1314 n.16
(citing R ESTATEMENT (S ECOND) OF T ORTS, supra, § 46 cmts. f & j); see also Chizmar, 896
P.2d at 204 (“[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress engendered by the
circumstances of the case.” (quoting Rodriguez v. State, 472 P.2d 509, 520 (Haw. 1970)));
accord Paugh v. Hanks, 451 N.E. 2d 759, 765 (Ohio 1983); cf. Williamson v. Bennett, 112
S.E.2d 48 (N.C. 1960) (holding that plaintiff’s outsized emotional reaction to car accident
was not allowed as basis for emotional distress damages where reasonable person would have
experienced some anger or been upset, but would not have suffered severe distress). That
43
(...continued)
would cause serious emotional distress. See Vassiliades, 492 A.2d at 592 (“[T]he breach of
a physician-patient [confidential] relationship is an actionable tort.”).
54
likelihood may be shown by evidence that professionals in the field recognize the risk of
serious emotional distress, see, e.g., Curtis, 956 P.2d at 96 (referring to patient’s “predictable
psychological reactions or consequences” after being placed in enclosed MRI machine); J.T.
Ptacek & Tara C. Eberhardt, Breaking Bad News: A Review of the Literature, J. A M. M ED.
A SS’N 496, 496 (1996) (discussing best medical practice in “situations where there is either
a feeling of no hope, [or] a threat to a person’s mental or physical well-being”), but we do
not foreclose the possibility that in some cases the likelihood of serious emotional distress
is so great that it could be evident to the judge from generally accepted societal expectations
due to the nature of the relationship or undertaking and the egregiousness of the breach of
obligation.
In addition, serious emotional distress will be deemed “especially likely” where the
defendant has an undertaking or relationship with the plaintiff that implicates care for
emotional well-being and knows or should know that the plaintiff is unusually susceptible
to suffer emotional distress. We have held that in a suit for intentional infliction of emotional
distress, “acts which are not generally considered outrageous may become so when the actor
knows that the other person is peculiarly susceptible to emotional distress.” Drejza, 650
A.2d at 1313 & n.12 (quoting Thompson, 520 A.2d at 291). If the defendant’s knowledge
of the plaintiff’s special vulnerability can transform an otherwise commonplace conduct into
an “outrageous” act sufficient to trigger liability under the strict standards for intentional
55
infliction of emotional distress, a fortiori in a negligence action, normal prudence requires
that the duty to care for the plaintiff’s well-being must be calibrated to the plaintiff’s known
fragility.
Finally, the emotional distress that is especially likely, and eventually proved to have
occurred, must be “serious and verifiable,” Jones, 589 A.2d at 424, irrespective of whether
a claim is analyzed under Williams or the rule we describe here. We have not had occasion
to date to opine on what type of emotional distress will be considered serious enough to be
compensable and we do not offer a definition in the abstract. What we can say is that to give
rise to a duty in the context of an action for negligent infliction of emotional distress, the
emotional distress must be acute, enduring or life-altering.
V. Policy Considerations
Finally, because recognizing a duty is ultimately a determination grounded upon
policy considerations, see Cooper, 483 A.2d at 321, we address several policy-based
arguments made by appellees and amicus CNMC. They posit a number of situations as
examples of the ways in which a rule based upon relationships and undertakings might
“adversely affect the delivery of health care in the District of Columbia” by, inter alia,
discouraging doctors from adopting “early and aggressive” treatment of HIV/AIDS and other
56
serious illnesses or preventing doctors from following the established “differential diagnosis”
strategy that seeks to eliminate the most serious possible health concerns first. We are
unpersuaded by these hypothetical scenarios, however, because none is premised upon a
breach of the applicable standard of care by the medical care provider – an indispensable
element of a negligence claim. To the contrary, they exemplify doctors providing prudent
treatment. It is beyond cavil, however, that a plaintiff’s claim for negligent infliction of
emotional distress cannot succeed if the doctor’s treatment conformed to the applicable
standard of care, even if emotional distress will inevitably result during the patient’s
treatment. The rule we adopt for recognizing the existence of a duty does not abrogate the
well-settled rules of negligence, which require a showing of an obligation to act (or refrain
from acting) in a specific manner, breach of that obligation, and proximate causation. In
cases involving doctors, therefore, a plaintiff must present expert testimony that the doctor
breached the national standard of care and must prove that this breach was reasonably likely
to cause an objective person, and in fact did cause the plaintiff, to suffer serious emotional
distress. The plaintiff’s burden of proof, rather than the court’s legal determination of a duty,
provides the appropriate means of protecting medical care providers from the type of
frivolous claims that concern appellees and amicus CNMC.
We also are convinced that to refuse to recognize a duty in all cases simply because
there is no risk of physical injury, even where, as here, the defendant is alleged to have
57
breached an established obligation that predictably caused serious emotional distress to the
plaintiff, would unfairly allow the negligent actor to be immunized from liability at the
expense of the injured person. See Washington, 646 A.2d at 353 (Schwelb, J., dissenting)
(“Where the injury to [the plaintiff’s] feelings is as real and as palpable as that claimed here,
we ought not to deny . . . redress.”). The result that appellees advocate is not without societal
costs and leaves unfulfilled the purpose of negligence law to provide redress for breach of
legally recognized obligations. The rule we adopt, in contrast, holds negligent actors to
account in situations where the nature of their undertaking or relationship entailed the special
likelihood that serious emotional harm to a specific person would result from breach of their
legal obligations and compensates a claimant who can prove that serious injury was, in fact,
caused by the breach, in conformance with traditional principles of negligence law.
Appellees are also concerned that a rule that establishes a duty based upon the
relationship between the parties – rather than focusing on whether the plaintiff was placed
within the “zone of physical danger” – does not “acknowledge[] the difficulty, in cases
presenting solely claims of mental or emotional distress, of parceling cause and effect . . . and
how difficult it is for juries to resolve such cases based upon anything other than
speculation.”
But we have already crossed that bridge.
This concern is universally
applicable to emotional distress claims, including those routinely awarded as “parasitic”
damages in the context of the common law or statutory actions discussed above. As we said
58
in Williams, “the question of proof in individual situations should not be the arbitrary basis
upon which to bar all actions.” Williams, 572 A.2d at 1067 (quoting Battalla v. State, 176
N.E.2d 729, 731 (N.Y. 1961)). Nor are we persuaded by the usual “flood gates” argument.
Once a duty to avoid inflicting emotional distress is established, “fear of opening the gates
to a flood of litigation [should not] be determinative of whether the interest in question
should be legally protected.” Williams, 572 A.2d at 1067. We see no need to revisit these
issues here.
Finally, appellees and CNMC cite Consolidated Rail Corp. v. Gottshall, 512 U.S. 532
(1994), as support for their argument that the “zone of physical danger” test remains the best
means of determining the scope of the actor’s duty in negligent infliction of emotional
distress cases. We do not find this argument persuasive. In Consolidated Rail, the Supreme
Court was tasked with identifying the proper standard for evaluating claims for negligent
infliction of emotional distress that are brought under the Federal Employers’ Liability Act
(“FELA”). The Court chose the “zone of danger” test from three possibilities: (1) the
physical impact test; (2) the zone of danger test; and (3) the “relative bystander” test as
articulated by the California Supreme Court in Dillon v. Legg, 441 P.2d at 920. See Consol.
Rail Corp., 512 U.S. at 546-49. The Consolidated Rail opinion gives no indication that a
rule based on an underlying relationship or undertaking such as the one we adopt here was
considered by the Court. Furthermore, the Court gave great weight to the fact that the zone
59
of danger test “had been adopted by a significant number of jurisdictions” at the time of
FELA’s enactment in 1908, and was still in use by fourteen jurisdictions when it decided the
case in 1994. Id. at 554-55. Of course, appellant’s claim before us is not governed by FELA
or any other statute, but by the common law we apply and develop as appropriate, on a caseby-case basis. Here we are presented with a claim of serious emotional distress, negligently
inflicted, in the context of an established doctor-patient relationship with consequences that
fail to satisfy the “zone of physical danger” test.
We think that the rule based on
undertakings or special relationships that expressly or necessarily implicate the plaintiff’s
emotional well-being and where negligent performance of an objectively ascertainable
obligation is especially likely to result in serious emotional distress, squarely addresses the
concern, expressed not only in Williams but throughout the Consolidated Rail opinion, see
id. at 545-46, 551-52, that compensable emotional injuries could be infinite if courts did not
impose limitations on duty beyond the concept of mere foreseeability. The duty we define
in this opinion draws a finite and circumscribed area of liability, to identifiable claimants.
VI. Remand
Having set out the legal requirements, we now turn to the facts alleged by appellant.
On December 13, 2000, appellant, Terry Hedgepeth, visited the Whitman Walker Clinic
(“WWC”) and requested an HIV test. Hedgepeth, 980 A.2d at 1230. Appellant told an
60
intake worker at WWC that he “thought [he] had HIV” because he “found out that [his]
girlfriend was HIV-positive.” The intake worker then noted that appellant was “HIVpositive” on appellant’s file. WWC took a blood sample from appellant, which was sent to
American Medical Laboratories, Inc. (“AML”) for testing. AML administered an HIV1/HIV-2 Antibodies ELISA test, which was “non-reactive” and therefore indicated that
appellant was not HIV-positive. Id. However, due to human error, a “Client Lab Results”
form prepared at the clinic mistakenly showed that appellant tested positive for HIV. Dr.
Mary Fanning, M.D., who worked at WWC, had appellant’s file, which contained both the
inaccurate “Client Lab Results” form and the accurate results of the HIV-1/HIV-2 Antibodies
ELISA test. When she met with appellant, Dr. Fanning told him, incorrectly, that he had
tested positive for HIV. Dr. Fanning also told appellant that he was asymptomatic for HIV
and had a “normal” viral load. Id.
Following the mistaken diagnosis delivered in 2000, appellant believed that he was
HIV positive for five years.44 He became depressed and began having suicidal thoughts,
which resulted in his admission to the psychiatric wards at George Washington University
Hospital in January 2001, and at Sibley Hospital in 2002. Id. at 1231. He was prescribed
44
Throughout this time, appellant did not take any medications related to his “HIVpositive” status. WWC, however, filed medical forms that made appellant’s treatment at
WWC eligible for funding under the Ryan White program. WWC personnel also approved
a form to apply for public assistance through the AIDS Drug Assistance program, which
erroneously stated that appellant had been prescribed Combivir and Crixivan.
61
several medications for depression.45 He lost his job as a restaurant manager. Appellant’s
relationship with his daughter also suffered as a result of his depression. Appellant used
illegal drugs, suffered from an eating disorder, and began to have sexual intercourse with a
woman he knew to be HIV-positive “[b]ecause [he] was diagnosed with HIV and there was
no reason for [him] to live.” Id.
Appellant visited the Abundant Life Clinic in June 2005, where he was again tested
for HIV. The test revealed that appellant was not HIV positive. Id. According to Dr. Abdul
Muhammad, the treating physician at Abundant Life, upon hearing the negative test result,
appellant wept and appeared to him as though he were “a man being released from prison.”
Appellant confirmed his negative test result several weeks later at the Johns Hopkins
Bayview Medical Center.
Summary judgment can be granted only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Super. Ct. Civ. R. 56 (c). Our standard of review on both issues is de novo.
See, e.g., Kuder v. United Nat’l Bank, 497 A.2d 1105, 1106-07 (D.C. 1985).
45
Appellant’s prescription medications for depression included Zoloft, Ambien,
Trazodone, and Wellbutrin.
62
Appellees do not dispute that they owed a duty of care to appellant as their patient;
appellant alleges that this duty was breached when appellees negligently misinformed him
that he was HIV positive, and has presented testimonial and documentary evidence in support
of his allegations. Furthermore, there is evidence in the record to support that the nature of
appellees’ duty to appellant necessarily implicated his emotional well-being and that it was
especially likely that a doctor’s breach of duty in misdiagnosing a patient with HIV-infection
would result in serious emotional harm.
Appellant’s actions and suffering after the
misdiagnosis reveal that when a patient is told that he has a life-altering or life-threatening
chronic disease, this information can and does cause serious emotional distress. When the
diagnosis is for HIV – a potentially fatal infection that carries a significant social stigma –
the emotional impact can be catastrophic. WWC does not dispute that patients who are
informed that they are HIV positive often suffer serious emotional distress. Indeed, WWC
implicitly recognizes this risk; its brief recounts that WWC provides counseling to patients
who test positive for HIV “to help the person understand how to live with the virus, and also
to accept that, in 2010, the presence of HIV is not tantamount to a ‘death sentence.’” In one
commentator’s view, appellant’s distress is “inseparable” from breach of the appellees’ “core
undertakings.” Undertakings and Special Relationships, supra, at 62. Nor does WWC
dispute that appellant actually suffered serious emotional distress, a claim that appellant has
sought to verify with evidence of his admission to two psychiatric wards, prescriptions for
several anti-depressants, the deterioration of his relationships with his employer and with his
63
daughter, and his risk-taking behavior. In sum, there is both objective and subjective
evidence that serious emotional distress would result from appellees’ negligent misdiagnosis
of HIV.
Applying the rule we enunciate in this opinion, we conclude that on this record
appellees are not entitled to summary judgment on appellant’s claim of negligent infliction
of emotional distress. Accordingly, we reverse and remand the case for further proceedings
in the trial court consistent with this opinion.
So ordered.
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