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Kallstrom v. U.S. (03/15/2002) sp-5553
Kallstrom v. U.S. (03/15/2002) sp-5553
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BLANCHE KALLSTROM, )
) Supreme Court No. S-9332
Appellant, )
) Ninth Cir. Ct. App. No. 98-
35362
v. ) U.S. Dist.
Ct. No. CV-94-488 HRH
)
UNITED STATES OF AMERICA, ) O P I N I O N
)
Appellee. ) [No. 5553 - March
15, 2002]
________________________________)
Appellate Rule 407 Certified Question from
the Ninth Circuit Court of Appeals, on Appeal
from the United States District Court for the
District of Alaska, H. Russel Holland,
District Judge.
Appearances: Kristen D. Pettersen, Mauri
Long, and Ray R. Brown, Dillon & Findley,
Anchorage, for Appellant. Kenneth S. Roosa,
Assistant United States Attorney, and Robert
C. Bundy, United States Attorney, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. We accepted certification in this case to decide
whether a Negligent Infliction of Emotional Distress (NIED) cause
of action exists under Alaska law for a plaintiff who becomes a
participant in the infliction of anothers injuries through the
negligence of the defendant. Because we think that such an
extension is inadvisable, we hold that an NIED claim is not
available to such an unwitting instrument.
II. FACTS1 AND PROCEEDINGS
On November 27, 1993, Blanche Kallstrom and other
members of the public attended a social function and dance at
Jakes Place, an alcohol abuse transitional care facility in
Dillingham. The lights at the facility had been dimmed for the
dance. Non-alcoholic drinks were available to guests in the
kitchen area adjacent to the dance floor. During the dance,
Kallstrom went to the kitchen at the request of her young cousin
to get a drink for nine-year-old Lori Dee Wilson. Kallstrom
poured a drink from a pitcher sitting on the counter which she
believed to contain fruit juice and gave it to Lori Dee. In
fact, the pitcher contained a lye-based caustic detergent that
caused severe, permanent internal injuries to Lori Dee when she
drank it.
Kallstrom was not related to Lori Dee, but was friendly
with Lori Dee and her mother and would see them every two to
three months in Kallstroms store. As a result of her mistake,
Kallstrom claims that she sustained severe shock and emotional
distress that has persisted in the months following the tragic
incident.
Marilyn Wilson, Lori Dees mother, on her own behalf and
as guardian of Lori Dee, filed a complaint in federal court
against the United States for negligence. Although Kallstrom was
not named as a defendant by Wilson, the government brought a
third-party complaint against her for negligence, seeking an
allocation of fault. Kallstrom then filed a counterclaim against
the government for her injuries allegedly caused by the
governments negligence.
The federal district court granted summary judgment in
favor of Lori Dee and against the government, concluding that it
was negligent as a matter of law to allow an employee or resident
of the facility to leave the caustic detergent in the pitcher
near the sink. Wilson then settled her claim against the
government and her claims were dismissed. The government
dismissed its third-party claim against Kallstrom for an
allocation of fault, leaving only Kallstroms counterclaim against
the government.
Kallstrom next moved for partial summary judgment
against the government on her claim, and the government moved to
dismiss Kallstroms claim for failure to state a claim for relief
for NIED under Alaska law. The district court granted the
governments motion to dismiss and denied Kallstroms motion for
partial summary judgment.
Kallstrom then appealed to the Ninth Circuit Court of
Appeals. The court of appeals certified this question to the
Alaska Supreme Court pursuant to Rule 407(a) of the Alaska Rules
of Appellate Procedure2 because, as it noted, the facts of this
case are not directly addressed by Alaska case law.3
Specifically, the court of appeals asks:
Whether a plaintiff, who has not suffered
physical injury, may recover damages for the
negligent infliction of emotional distress
when the plaintiff, without any negligence on
her part, becomes the unwitting instrument
through which the defendant, because of its
negligence, causes injury to an innocent
victim.[4]
We agreed to accept certification and now answer the question
certified to us.
III. STANDARD OF REVIEW
A decision by this court to accept a certified question
from another court under Appellate Rule 407(a) involves
determinative questions of Alaska law for which there is no
controlling precedent. Therefore, we exercise our independent
judgment and select the rule of law that is most persuasive in
light of precedent, reason, and policy.5
IV. DISCUSSION
A. Kallstrom Does Not Have a Claim for Emotional Distress
under Established Alaska Law.
There are two causes of action under current Alaska law
that may permit some unwitting instruments who do not suffer
physical injury to recover for their emotional distress:
Negligent Infliction of Emotional Distress and Intentional
Infliction of Emotional Distress. However, neither one is
available in Kallstroms specific situation.
1. Negligent Infliction of Emotional Distress
Persons in Alaska can recover for the emotional
distress that they suffer under limited circumstances.
Generally, damages are not awarded for NIED in the absence of
physical injury.6 However, there are two established exceptions
to that rule in Alaska. The Ninth Circuit properly found that
neither of the two established exceptions to the requirement of
physical injury permits a claim for NIED by Kallstrom.7
a. The bystander exception
a. The first exception to the physical injury requirement
involves those properly characterized as bystanders under the
three-part test in Dillon v. Legg.8 The test, which is used to
determine whether the risk of harm to the plaintiff was
reasonably foreseeable, requires that: (1) the plaintiff is
located near the scene of the accident, (2) the shock results
from a direct emotional impact from the sensory and
contemporaneous observance of the accident, and (3) a close
relationship exists between plaintiff and victim.9
Alaska courts have taken a liberal approach in applying
the Dillon factors.10 In Tommys Elbow Room, Inc. v. Kavorkian, we
considered a NIED claim by a father who observed his severely
injured daughter a few minutes after she had been hit by a drunk
driver. Even though the father did not contemporaneously observe
the accident itself, as required under a strict reading of the
Dillon factors, we held that recovery was still available.11
But we have not yet taken a similarly liberal approach
to the third requirement of a close relationship. In Alaska,
this relationship has always involved a blood relationship
between plaintiff and victim.12 Other states that have expanded
the close relationship requirement have been very cautious to
expand beyond a victims immediate family, if they have done so at
all.13
Even if Alaskas liberal interpretation of Dillon
applied to the close relationship requirement, it would not
encompass Kallstrom. She has no blood relation to the victim and
had only passing involvement with the victim prior to the night
of the injury, so such extension is unwarranted. Kallstrom
cannot recover under the bystander theory.
b. The preexisting duty exception
The second exception to the requirement of physical
injury arises when the defendant owes the plaintiff a preexisting
duty, as recognized in Chizmar v. Mackie.14 If such preexisting
duty exists, then the potential emotional distress to the
particular plaintiff is considered sufficiently foreseeable to
permit recovery. A defendant must stand in either a fiduciary or
contractual relationship with the plaintiff in order to create
such a preexisting duty.15
The preexisting duty exception does not apply to
Kallstrom either, since the relationship between her and the
government was neither contractual nor fiduciary. Kallstrom
could only claim that defendant owed her the same general duty of
care owed to all other members of the public. Such a duty is not
specific enough to meet the requirements of Chizmar.
2. Intentional Infliction of Emotional Distress (IIED)
Another cause of action is available to those who
suffer emotional distress without accompanying physical injury
IIED. This cause of action differs from NIED in that the
plaintiff must show that the defendants actions leading to the
complained of emotional distress were intentional, outrageous, or
reckless and extreme.16 It does not appear that Kallstrom has
made such a claim in this case.
B. We Decline To Extend a Claim for NIED to Unwitting
Instruments.
The Ninth Circuit asks whether we would permit an
unwitting instrument exception to the limitation on claims of
NIED in the absence of physical injury. For the reasons
discussed below, we decline to add such an exception.
1. This issue is not clearly resolved by existing precedent.
The government contends that we have given sufficient
treatment to the policy considerations surrounding NIED claims
and stated the law clearly in Chizmar and M.A. v. United States.17
It argues that the two exceptions noted in those cases
(bystander, preexisting duty) were intended to be the only such
exceptions available for claims of NIED unaccompanied by physical
injury, so the mere consideration of an additional exception in
this case is excluded by well-established case law.
There are two reasons why we find that existing cases
are not meant to cover the entire field and preclude further
consideration. First, the governments argument relies on an
absolute reading of the specific language of Chizmar, which the
government reads as limiting recovery for NIED without physical
injury only to those owed a preexisting duty. However, our
decision in that case later recognizes that the requirement of a
preexisting duty is not absolute: Our holding today does not
modify the requirements for bystander recovery.18
Second, the governments reading of Chizmar and M.A. is
inconsistent with decisions subsequent to those cases. In two
other cases, Hawks v. State, Department of Public Safety19 and
Karen L. v. State, Department of Health & Social Services,20 we
considered whether new factual situations merited imposition of a
duty under NIED despite the fact that there was no preexisting
duty between the parties. The governments own brief acknowledges
that Chizmar has not rendered policy analysis irrelevant in new
NIED cases, but only that it is of limited applicability.
Although additional exceptions to the prohibition of
claims for NIED in the absence of physical injury will not be
easily established, we clarify that our decisions in Chizmar and
M.A. do not completely preclude consideration of such extensions
in the future.
2. Plaintiffs in the participant or unwitting instrument
scenario vary so widely that we deline to recognize an exception
for them.
The bystander and preexisting duty exceptions permit
recovery for NIED in the absence of physical injury because they
represent isolated situations where courts have found that the
special circumstances surrounding a claim for emotional damages
serve as a sufficient guarantee that the claim is neither false
nor insubstantial.21 We do not think that such certainty arises
in the case of an unwitting instrument. Factual circumstances
creating the participant or unwitting instrument scenario can
vary so widely that such a characterization adds very little to
the claim.
When deciding whether a novel action for negligence can
be maintained under the common law, we consider whether a duty
exists.22 Duty is not sacrosanct in itself, but is only an
expression of the sum total of those considerations of policy
which lead the law to say that the particular plaintiff is
entitled to protection.23 We apply the factors recognized in
D.S.W. v. Fairbanks North Star School District24 to determine
whether an actionable duty of care exists when the facts under
consideration are not covered by statute, regulation, contract,
or case law.25
In the present case, Kallstrom proposes that we
recognize a duty of due care to protect unwitting instruments
from emotional harm. But such a duty would run afoul of D.S.W.s
first and most important factor, foreseeability of harm to the
plaintiff.
We can imagine a potentially endless variety of factual
circumstances that may give rise to an unwitting instrument
claim: the friend who mails a defective toy to a child who later
chokes on a small part of the toy, the owner who lends his car to
a friend unaware that the car has faulty brakes, the cook whose
customers develop a disease ten years after he served them food
containing a carcinogenic preservative, and the driver who sues
parents for negligent supervision after hitting a child who
chases a ball into the street. Although all might be labeled
unwitting instruments, these scenarios vary widely with regard to
the relevant considerations of duty, including foreseeability,
certainty of injury, and ability to prevent future harm.
The cases cited by both parties also offer a variety of
factual circumstances and legal outcomes that confirm our
conclusion that unwitting instruments are a diverse group. In
Kately v. Wilkinson,26 a mother was allowed compensation for her
claims of emotional distress resulting from witnessing the death
of her daughters friend as she waterskied behind the defective
boat that the mother was driving. Similarly, in Althoff v.
Consolidated Rail Corp.,27 the court permitted a claim of
emotional distress by the operator of a defective crane that
dropped a wood timber and killed a bystander. However, in Straub
v. Fisher & Paykel Health Care,28 the court denied a respiratory
therapists claims of emotional distress after witnessing a
defective ventilator kill a patient. Other cases that we have
found show a similar variance.29
The parties attempt to distinguish cases reaching
opposing outcomes by claiming that they are based on alternate
legal causes (product liability or employers liability) or that
related aspects of the ruling states common law differs in some
significant way. Regardless, these divergent opinions make clear
that it cannot be said with regard to the unwitting instrument,
as Professor Prosser has said with regard to the bystander
exception, that [a]ll ordinary human feelings are in favor of
[an] action against the negligent defendant.30
Viewing these cases as a class of unwitting instrument
situations, we find that the relationship between the plaintiff
and the victim, the nature of the participants involvement, and
the uncertain mix of potential emotions, including guilt, shock
or indifference, fall well short of creating the same compelling
proposition that led the court in Dillon to allow recovery for a
mother who witnesses the infliction of death or injury to her
child.31
In particular, an unwitting instrument might be
expected to feel very different depending on the nature of the
persons instrumentality. For example, one instrument may be the
exclusive cause of injury while another may be only a
contributing or partial cause. Even more important is the type
of action giving rise to an unwitting instrument; one unwitting
instrument may exercise discretion or choice of action in the
role as instrument while anothers involvement may be completely
involuntary and unthinking. Each difference will contribute in
important ways to the plaintiffs feelings of guilt and will
control the emotional distress.
Our existing exceptions to the NIED rules requirement
of physical injury define combinations of factors that we
consider to be useful and reliable in identifying claims
involving foreseeable danger of serious emotional harm factors
such as physical or temporal proximity of the plaintiff to the
infliction of the victims injury and the relationship between the
participant and the victim. But we do not think that the broad
range of situations encompassed by the term unwitting instrument
would be useful in the same way.
Kallstroms case is compelling because she comes close
to so many of the relevant factors for establishing NIED in the
absence of physical injury. However, she fails to plead an
existing cause of action because her personal relationship to
Lori Dee is not close enough and the government owed her no
preexisting duty. Yet even assuming that the other requirements
of the bystander exception remained, we would decline to accept
unwitting instrument status that is, mere innocent presence in
the causal chain as a substitute for the existing requirement of
close personal relationship. Such a factor is so variable that
it does not meaningfully distinguish between claims that should
be allowed and those that should not.
V. CONCLUSION
We hold that a claim of NIED in the absence of physical
injury is not available to a plaintiff solely because she or he
is made the unwitting instrument of death or serious injury to
another through the negligence of the defendant.
_______________________________
1 Because the federal court has presented us with a
generalized certified question and because our deliberations as
to novel causes of action focus on legal duties between
individuals rather than particular conduct, see Bolieu v. Sisters
of Providence in Wash., 953 P.2d 1233, 1235-36 (Alaska 1998)
(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts 53, at 356 (5th ed. 1984)), the immediate facts of this
case are relevant only to the extent that they provide background
information and illustration of the legal issue to be decided.
2 Rule 407(a) provides:
The supreme court may answer questions of law
certified to it by the Supreme Court of the
United States, a court of appeals of the
United States, a United States district
court, a United States bankruptcy court or
United States bankruptcy appellate panel,
when requested by the certifying court if
there are involved in any proceeding before
it questions of law of this state which may
be determinative of the cause then pending in
the certifying court and as to which it
appears to the certifying court there is no
controlling precedent in the decisions of the
supreme court of this state.
3 Wilson v. United States, 190 F.3d 959, 962-63 (9th Cir.
1999).
4 Id. at 960.
5 M.A. v. United States, 951 P.2d 851, 853 (Alaska 1998);
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
6 Hancock v. Northcutt, 808 P.2d 251, 257 (Alaska 1991).
7 Wilson, 190 F.3d at 962.
8 441 P.2d 912, 920 (Cal. 1968). See also Tommys Elbow
Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986) (adopting
Dillon).
9 Dillon, 441 P.2d at 920.
10 Kavorkian, 727 P.2d at 1042-43.
11 Id.
12 Wilson, 190 F.3d at 962 (citations omitted).
13 Compare Leong v. Takasaki, 520 P.2d 758, 766 (Haw.
1974) (extending claim to plaintiff who observed injury to
stepgrandmother); Dunphy v. Gregor, 642 A.2d 372, 376-77 (N.J.
1994) (extending claim to cohabitants of over two years who were
engaged but not married); with Elden v. Sheldon, 758 P.2d 582,
588 (Cal. 1988) (refusing to extend claim to unmarried
cohabitants); Blanyar v. Pagnotti Enterprises, Inc., 679 A.2d 790
(Pa. Super. 1996) (refusing to extend claim to very close
cousin).
14 896 P.2d 196, 203 (Alaska 1995).
15 Id.
16 Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 133 (Alaska
2000); Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 635 (Alaska
1999).
17 951 P.2d 851 (Alaska 1998).
18 Chizmar, 896 P.2d at 204.
19 908 P.2d 1013 (Alaska 1995).
20 953 P.2d 871 (Alaska 1998).
21 Chizmar, 896 P.2d at 202 (quoting W. Page Keeton, et
al., Prosser and Keeton on the Law of Torts 53, at 356 (5th ed.
1984)).
22 See Stephens v. State, Dept of Revenue, 746 P.2d 908,
910 (Alaska 1987).
23 Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998)
(citations omitted).
24 628 P.2d 554, 555 (Alaska 1981). The D.S.W. factors
include the following:
(1) the foreseeability of harm to the plaintiff;
(2) the degree of certainty that the plaintiff
suffered an injury;
(3) the closeness of the connection between the
defendants conduct and the plaintiffs injury;
(4) the moral blame attached to the defendants
conduct;
(5) the policy of preventing further harm;
(6) the extent of the burden to the defendant and
consequences to the community of imposing a
duty of care; and
(7) the availability, cost, and prevalence of
insurance for the risk involved.
25 See Karen L. v. State, Dept of Health & Soc. Servs.,
953 P.2d 871, 875 n.9 (Alaska 1998); M.A. v. United States, 951
P.2d 851 (Alaska 1998).
26 195 Cal. Rptr. 902 (Cal. App. 1984).
27 1988 WL 61734 (E.D. Pa. 1988).
28 990 P.2d 384 (Utah 1999).
29 Compare Crippens v. Sav On Drug Stores, 961 P.2d 761
(Nev. 1998) (permitting claim by daughter who administered
negligently dispensed drugs to her mother), with Slaton v.
Vansickle, 872 P.2d 929 (Okla. 1994) (rejecting claim by gun
owner whose gun misfired while he was cleaning it and killed
young girl).
30 W. Page Keeton, et al., Prosser and Keeton on the Law
of Torts 54, at 366 (5th ed. 1984).
31 Dillon, 441 P.2d at 914.
