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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nixola Jean Doan v. Banner Health, Inc. (5/31/2019) sp-7370
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
NIXOLA JEAN DOAN, )
) Supreme Court No. S-16322
Petitioner, )
) Superior Court No. 4FA-13-01538 CI
v. )
)
O P I N I O N
BANNER HEALTH, INC., d/b/a )
FAIRBANKS MEMORIAL )
No. 7370 - May 31, 2019
HOSPITAL; NORTHERN )
HOSPITAL ASSOCIATION, LLC; )
JAMES W. CAGLE, D.O.; GOLDEN )
HEART EMERGENCY )
PHYSICIANS; FAYE LEE, M.D.; )
INTERIOR AIDS ASSOCIATION/ )
PROJECT SPECIAL DELIVERY; )
and NICOLE FLISS, M.D., )
)
Respondents. )
)
Petition for Review from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Douglas Blankenship, Judge.
Appearances: Sandra K. Rolfe and Galen Cook, Stepovich
& Vacura Law Office, Fairbanks, for Petitioner. John J.
Tiemessen, Clapp Peterson Tiemessen Thorsness & Johnson,
LLC, Fairbanks, for Respondents Northern Hospital
Association; James W. Cagle, D.O.; Golden Heart
Emergency Physicians; and Faye Lee, M.D. No appearance
by Respondents Banner Health, Inc., d/b/a Fairbanks
Memorial Hospital; Interior Aids Association/Project Special
Delivery; or Nicole Fliss, M.D.
----------------------- Page 2-----------------------
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
MAASSEN, Justice.
WINFREE, Justice, concurring.
STOWERS, Chief Justice, concurring.
I. INTRODUCTION
A mother was in the hospital waiting area when her daughter died. The
mother sued a number of medical care providers for wrongful death and medical
malpractice, as well as for the emotional distress she suffered upon seeing her daughter's
body. The superior court dismissed the mother's claim for negligent infliction of
emotional distress, reasoning that the tort was not viable absent evidence that the plaintiff
contemporaneously understood that her loved one's death had been negligently caused.
The mother petitioned for review of this order; we granted review.
We conclude that under our caselaw, a viable bystander claimfor negligent
infliction of emotional distress does not depend on the plaintiff's contemporaneous
realization that the injuries she observes were negligently caused. We therefore reverse
the superior court's grant of summary judgment.
II. FACTS AND PROCEEDINGS
One morning in March 2011, Nixola Doan went to Fairbanks Memorial
Hospital with her adult daughter, Tristana, who was coughing and having trouble
breathing. Doan stayed with Tristana for much of the day. Around 7:00 p.m. Tristana's
condition worsened, and Doan was "ushered . . . out" of the room while Tristana was
intubated. Doan remained in the waiting area and did not see Tristana again until
approximately the time of her death at 11:41 p.m., 1 when Doan reentered the room and
1 Whether Tristana died shortly before or shortly after Doan last entered the
room is unclear from our record but not material to our decision.
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saw her daughter's body.
In 2013 Doan, as the personal representative of Tristana's estate, filed suit
against a number of medical care providers, alleging medical malpractice and wrongful
death. Doan also brought her own claim for negligent infliction of emotional distress
(NIED). Several of the defendants (collectively "the doctors") moved for summary
judgment on the NIED claim, arguing that it was legally untenable without evidence that
Doan understood, while Tristana was undergoing care, that her caregivers were acting
negligently.
The superior court granted summary judgment and dismissed the NIED
claim, concluding that Doan failed to satisfy a requirement of the tort that she have "a
contemporaneous understanding of the cause of Tristana's death." (Emphasis in
original.) Doan sought reconsideration, which the court denied. Doan filed a petition
asking us to review the dismissal of her NIED claim; we granted her petition.
III. STANDARD OF REVIEW
2
We review a grant of summary judgment de novo.
"When reviewing a
grant of summary judgment, our duty is to determine whether there was a genuine issue
of material fact and whether the moving party was entitled to judgment on the law
3 We apply our independent judgment to questions
applicable to the established facts."
of law and adopt "the rule of law that is most persuasive in light of precedent, reason,
and policy."4
2 Harrell v. Calvin , 403 P.3d 1182, 1185 (Alaska 2017) (citing Hurn v.
Greenway, 293 P.3d 480, 483 (Alaska 2013)).
3 Id. at 1185-86 (quoting Palmer v. Borg-Warner Corp., 818 P.2d 632, 634
(Alaska 1990)).
4 Dixon v. Dixon, 407 P.3d 453, 457 (Alaska 2017) (quoting Vezey v. Green,
(continued...)
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----------------------- Page 4-----------------------
IV. DISCUSSION
In its decision on summary judgment, the superior court concluded that
"[i]nherent in [Alaska's] cases [allowing recovery for NIED] is the contemporaneous
comprehension of the cause of the injury"; the court held, therefore, that "in a medical
malpracticecase, theplaintiffmust haveacontemporaneousunderstanding that thecause
of the injury is the result of the malpractice." The court acknowledged this effect of its
ruling:
[B]ystanders may validly assert bystander NIED claims for
blatant medical errors obvious to laypersons, such as
negligently amputating a healthy limb or neglecting to care
for a patient whose symptoms obviously require immediate
attention. But where the causation is beyond the
understanding of the lay bystander an NIED claim is not
available.
The doctors argue that the superior court correctly stated Alaska law: "As a matter of
law, [Doan]cannotrecover on [an]NIEDbystanderclaimunless shecontemporaneously
comprehended that allegedly negligent medical treatment was causing injury to her
daughter."
That an injured victim, in order to recover, must contemporaneously
comprehend that her injuries were negligently caused is not a usual requirement of a
negligence claim. Indeed, tort victims may not know or even suspect that their injuries
were negligently caused until they have had some time to investigate; our tort law has
long recognized this.5 Here, the doctors contend that our case law treats NIED claims
4 (...continued)
35 P.3d 14, 20 (Alaska 2001)).
5
See Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990)
("When the nature of the injury, or the nature of the cause of the injury, prevents a
(continued...)
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----------------------- Page 5-----------------------
differently, but - although we acknowledge "the policy favoring reasonable limitations
6
on liability" in this context
- we disagree that the doctors' proposed rule is one such
reasonable limitation.
We first recognized the NIED cause of action in 1986 in Tommy's Elbow
7 In that case, a father and daughter attended
Room, Inc. v. Kavorkian (Kavorkian III).
a function together but the daughter left first to ride home with another family.8 A drunk
driver struck the family's car.9 Driving home later, the father passed the scene of the
accident without realizing that his daughter was involved.10 When he arrived home and
his daughter was not there, he returned to the scene of the accident in time to see police
and medical personnel attempting to remove her from the wreckage.11
Accepting the viability of NIED claims under Alaska law, we looked to the
guidelines set out by the California Supreme Court in Dillon v. Legg :
5 (...continued)
plaintiff from discovering facts essential to his claim, the discovery rule tolls the statute
[of limitations] until the plaintiff discovers or reasonably should have discovered that he
has a case."); see also Palmer, 818 P.2d at 634 ("Upon notification of an airplane crash,
a reasonable person has, as a matter of law, enough information to be alerted that she
'should begin an inquiry' concerning a potential cause of action against the pilot, the
carrier or the manufacturer.").
6 See Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 110
(Alaska 1992).
7 727 P.2d 1038, 1043 (Alaska 1986).
8 Id. at 1040.
9 Kavorkian v. Tommy's Elbow Room, Inc. (Kavorkian I), 694 P.2d 160, 162
(Alaska 1985).
10 Kavorkian III, 727 P.2d at 1040.
11 Id.
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(1) Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance away
from it. (2) Whether the shock resulted from a direct
emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted
with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as
contrasted with anabsenceofany relationship or the presence
of only a distant relationship. [12]
We declined, however, to interpret Dillon as imposing a "rigid requirement of sensory
andcontemporaneous observanceoftheaccident,"instead requiring only"thereasonable
foreseeability that theplaintiff-witness would suffer emotionalharm."13 Afterconcluding
that it was reasonably foreseeable that the father in Kavorkian III would appear at the
scene of the accident, we allowed his NIED claim to go forward.14
A year later, in Croft ex rel. Croft v. Wicker, we reiterated our rejection of
the "strict application of the Dillon guidelines" under which it is "necessary for the
plaintiff to have witnessed the tortious event."15 The plaintiffs in Croft alleged that
Wicker molested their teenaged daughter Sarah while giving her a ride on a three-
wheeler; the parents did not allege that they witnessed the assault itself but only that they
"were in close proximity when Wicker sexually assaulted Sarah and witnessed their
daughter's extreme emotional distress, and consequently suffered emotional distress
12 Id. at 1041 (quoting Dillon v. Legg , 441 P.2d 912, 920 (Cal. 1968)).
13
Id. at 1043.
14
Id .
15
737 P.2d 789, 791 (Alaska 1987).
-6- 7370
----------------------- Page 7-----------------------
16
themselves." We explained in Croft our recognition of the NIED tort in Kavorkian III
and cited several California cases in which parents who did not witness the tortious event
were nonetheless allowed to recover after coming upon the event's immediate
17 We held that the parents in Croft stated a claim under Alaska law:
consequences.
[C]oncededly the Crofts did not sensorily and
contemporaneously observe the incident of sexual assault
alleged here. Our discussion of Kavorkian and the other
cases cited makes clear, however, that it is the reasonable
foreseeability to the defendant of harm to the plaintiff that
generates the defendant's duty to exercise reasonable care.[18]
Because "the Crofts were in close proximity to Wicker and Sarah when the
alleged incident occurred," because "[t]hey observed her extreme distress just after the
alleged assault occurred," and because there was some question as to whether it was
"reasonably foreseeable to Wicker that Sarah's parents would be in close proximity and
therefore harmed by his actions," the Crofts' claim was sufficiently pleaded to go to the
jury. 19
16 Id. at 790.
17 Id. at 792; see also id. at 791-92 (summarizing California cases as
concluding "that there were triable issues of fact as to whether the alleged harm to the
mother resulted from an emotional shock caused by the direct emotional impact from the
contemporaneous observation of the immediate consequences of the defendant's
negligent act causing the injury and death of her son" and "that the shock of seeing a
child severely injured immediately after the tortious event may be just as profound as that
experienced in witnessing the accident itself, and that therefore the plaintiff had met the
contemporaneous observance requirement" (first citing Nazaroff v. Superior Court, 145
Cal. Rptr. 723 (Cal. App. 1978); then citing Archibald v. Braverman , 79 Cal. Rptr. 657
(Cal. App. 1969))).
18 Id. at 792.
19 Id.
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----------------------- Page 8-----------------------
In this case, in a clarifying order on reconsideration, the superior court
focused on a sentence in Mattingly v. Sheldon Jackson College , in which we said that
"the shock [must] result more or less contemporaneously with the plaintiff's learning of
20 The superior court interpreted this to mean that
the nature of the victim's injury."
Doan's recovery depended on her subjective understanding of events; the court read the
phrase "the nature of the victim's injury" to mean that an NIED plaintiff must understand
not just the physical nature of the injury - traumatic bodily injury or death - but also
the legal nature of the injury - negligence.
Mattingly concerned the collapse of a trench in which Mattingly's son had
been working.21 The accident happened in Sitka, but Mattingly was in Ketchikan when
he learned of it.22 The facts of Mattingly thus did not require the court to distinguish
between the physical and the legal nature of an injury - Mattingly was not in a position
to have directly perceived either one. But explaining why geographical distance
precluded Mattingly's NIED claim, we noted that "it cannot be said that the shock of
observing his injured son . . . followed 'closely on the heels of the accident,' " that
Mattingly "had time to steel himself during his flight to Sitka," and that "[t]here was no
23 Thus, in the context of describing "the
sudden sensory observation of his injured son."
nature of the victim's injury," our focus was on the victim - the sight of whom is likely
to cause the emotional harm - rather than the actions of the tortfeasor. And to support
the sentence in Mattingly that contained the phrase "the nature of the victim's injury,"
20 743 P.2d 356, 365-66 (Alaska 1987).
21 Id. at 358.
22 Id. at 358, 365.
23 Id. at 365-66 (emphasis added).
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we cited Croft, which, as noted above, explicitly rejected a requirement that the plaintiff
observe the tortious act as opposed to its immediate impact on the victim. 24
We reaffirmed this interpretation of the NIED claim in Beck v. State,
Department of Transportation & Public Facilities, in which we declined to follow the
California Supreme Court's tightening of the Dillon test.25 A mother was at home when
she learned that her daughter had been involved in an accident six miles away.26 The
mother immediately drove to the scene, but rescue workers prevented her "from
approaching the wrecked vehicle which still contained her injured daughter."27 The
mother then drove to the hospital, where she "saw her injured daughter for the first
time."28 She later sued the State for negligent maintenance, repair, and signage, alleging
that road crews had negligently left "rain soaked slide debris on the roadway" which both
obscured the lane markings and caused her daughter to lose control.29
The State in Beck urged us to follow the approach taken by the California
30 Decided after Kavorkian III, Croft, and
Supreme Court in Thing v. La Chusa.
Mattingly - and concluding that the Dillon factors were leading "to uncertainty and
24 Id. at 366 n.3 (citing Croft, 737 P.2d 789).
25 837 P.2d 105, 110 (Alaska 1992) (citing Thing v. La Chusa , 771 P.2d 814
(Cal. 1989)).
26 Id. at 109.
27 Id.
28 Id. at 109-10.
29 Id. at 108.
30 Id. at 110.
-9- 7370
----------------------- Page 10-----------------------
31
'ever widening circles of liability' " - Thing adopted a "bright-line" interpretation of
Dillon that required, as its second element, that the plaintiff be "present at the scene of
the injury[-]producing event at the time it occurs and [be] then aware that it is causing
32 In Beck we decided, however, "that both justice and the policy
injury to the victim."
favoring reasonable limitations on liability [could] be served with a less restrictive
approach than that taken by the Thing court": We held
that one who is thrust, either voluntarily or involuntarily, into
such dramatic events and who makes a sudden sensory
observation of the traumatic injuries of a close relative in the
immediate aftermath of the event which produced them is no
less entitled to assert a claim for his or her emotional injuries
than one who actually witnessed the event.[33]
Because in Beck the mother's "emotional shock resulted from her observation of her
daughter's traumatic injuries during the continuous flow of events in the immediate
aftermath of the accident, and because it cannot be said that she had time to 'steel herself'
as did the plaintiff in Mattingly," we concluded "that her injury was foreseeable" and her
NIED claim should be presented to the jury.34
31 Id. at 110 n.2 (quoting Thing, 771 P.2d at 819).
32 Thing, 771 P.2d at 829-30; see Beck, 837 P.2d at 110 n.2. The second
Dillon element, which we decided in Kavorkian III to give its "more liberal
interpretation," 727 P.2d 1038, 1043 (Alaska 1986), had previously required that "the
shock result[] from a direct emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted with learning of the accident
from others after its occurrence." Id. at 1041 (quoting Dillon v. Legg, 441 P.2d 912, 920
(Cal. 1968)).
33 Beck, 837 P.2d at 110.
34 Id. at 111.
-10- 7370
----------------------- Page 11-----------------------
None of these formative cases - Kavorkian III , Croft, Mattingly, or Beck
- supports the rule the doctors propose here: that Doan "cannot recover on [an] NIED
bystander claim unless she contemporaneously comprehended that allegedly negligent
medical treatment was causing injury to her daughter." The father in Kavorkian III
brought a dram shop action against the bar that had served alcohol to the driver who
35 The father clearly knew there had been an accident when
allegedly caused the accident.
he saw his injured daughter being extricated from the wreckage, but there is no
indication he knew anything about its cause, let alone that it involved the negligence of
a server in a bar some distance away. The parents in Croft knew that something had
happened when they witnessed their daughter's emotional distressat theend ofher three-
wheelerride, but thereis no indication they "contemporaneouslycomprehended"thather
distress was caused by Wicker's sexual assault. The father in Mattingly was denied relief
because he had time to steel himself before viewing his son's injuries; whether he had
any contemporaneous understanding of the cause of the trench's collapse played no part
in our opinion (though under the doctors' proposed rule it could have been dispositive).
And the mother in Beck, like the father in Kavorkian III, knew there had been an accident
when she viewed its wreckage and then saw her daughter at the hospital, but again there
is noindication that shecontemporaneouslycomprehended theallegedly negligent cause
- involving the State's work on the road. Determinative in each of these cases -
entitling the parents to a possible tort recovery in Kavorkian III, Croft, and Beck and
precluding the father's recovery in Mattingly -was simply whether there was a "sudden
35
727 P.2d at 1039-40; see also Kavorkian v. Tommy's Elbow Room
(Kavorkian II), 711 P.2d 521 (Alaska 1985) (detailing alcohol-related aspects of case).
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sensory observation of the traumatic injuries of a close relative in the immediate
aftermath of the event which produced them." 36
It is the emotional impact of the injury that the NIED tort is intended to
address. To require that an emotionally distressed plaintiff also recognize negligence as
it is occurring is asking too much. As noted above, negligence is not always obvious;
a conclusion that someone was negligent often follows the acquisition of facts not readily
apparent from the scene itself, e.g., that one driver was under the influence of alcohol,
that he was negligently served at a bar, that the roadway was poorly maintained, or that
a vehicle's brakes failed. Requiring a contemporaneous perception of negligence adds
an element of caprice that has no relationship to the harm suffered. When confronted
with a sudden, terrible injury to a loved one, one plaintiff might retain the clarity of mind
necessary to judge the reasonableness of the tortfeasor's actions, while another plaintiff
might be overwhelmed by the trauma or consumed by concern for the loved one. Under
the doctors' proposed rule the first plaintiff will recover but the second will not.
Recovery may also depend on the plaintiff's level of sophistication, particularly in the
area of medical malpractice (as the superior court recognized in limiting recovery to
"blatant medical errors obvious to laypersons"). Aphysician who recognizes negligence
in the care of a loved one may recover, whereas a layperson who suffers the same
emotional hurt but lacks a medical education has no remedy. And the rule raises difficult
36 Beck, 837 P.2d at 110; see Mattingly v. Sheldon Jackson Coll. , 743 P.2d
356, 366 (Alaska 1987) ("There was no sudden sensoryobservation of his injured son.");
Croft ex rel. Croft v. Wicker , 737 P.2d 789, 792 (Alaska 1987) ("[The parents] observed
[the daughter's] extreme distress just after the alleged assault occurred."); Kavorkian III ,
727 P.2d at 1043 ("Upon arriving at the scene, . . . [the father] perceived and suffered
shock from observing his child's injury.").
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----------------------- Page 13-----------------------
questions of how closely the plaintiff's perception of negligence must match the proof
at trial. 37
The doctors contend that this court "has never permitted recovery for
negligent infliction of emotional distress in favor of a non-patient against a medical
provider for treatment provided to a family member/patient," but the cases they cite do
not preclude such a recovery. In Chizmar v. Mackie, which the doctors cite for the
proposition that NIED claims cannot be based on "foreseeability alone," we held that "a
plaintiff's right to recover emotional damages caused by mere negligence should be
limited to those cases where the defendant owes the plaintiff a preexisting duty."38
Chizmar was not a bystander claim but rather involved a patient's claim against her
physician; we held that the superior court erred by directing a verdict against the plaintiff
39 But we also held that we did not intend to "modify the requirements for
on the claim.
37 Assume, for example, that the plaintiff perceives that a nurse is providing
negligent care when the nurse is actually following the negligent instructions of a
supervisor. May the plaintiff recover for NIED even though she misidentified the
negligent actor? If the plaintiff perceives one actor's negligence but later learns that
others were negligent as well, are her emotional distress damages prorated to reflect only
the negligence she contemporaneously recognized? May the plaintiff recover if the
evidence shows negligence but not as the plaintiff contemporaneously perceived it (e.g.,
she thought a nurse failed to give a necessary medication when actually the nurse gave
too much)?
38 896 P.2d 196, 203 (Alaska 1995).
39 Id. at 205.
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40
'bystander' recovery we applied in Mattingly ." Chizmar - and other "preexisting
41 42
duty" cases on which the doctors rely
- are largely irrelevant to our discussion today.
The doctors also cite M.A. v. United States, in which we determined, on a
certified question from the federal court, that a mother did not have an NIED claim
arising from a doctor's negligent failure to diagnose the pregnancy of her minor
daughter.43 But the mother's claim failed for a number of reasons, none of which are
determinative here:
[The mother] was not in close proximity to [the daughter],
either at the time of the alleged misdiagnosis or when [the
daughter] subsequently learned of her pregnancy; [the
mother's] eventual "shock," if any, does not appear to have
occurred contemporaneously with her daughter's discovery
of the injury; and there is no indication that the immediate
"shock" came in response to the alleged injury -the lateness
40 Id. at 204.
41 The doctors discuss the preexisting duty cases of Hawks v . Department of
Public Safety, 908 P.2d 1013, 1016-17 (Alaska 1995), and Karen L. v. State, Department
of Health &Social Services, Division of Family &Youth Services , 953 P.2d 871, 875-78
(Alaska 1998). The doctors point out that we discussed bystander cases in Karen L. , but
we explicitly noted that they were decided "[i]n another context," id. at 875, and we cited
them only to illustrate the concept of foreseeability common to all NIED claims. See
Kallstrom v. U.S., 43 P.3d 162, 165-66 (Alaska 2002) (outlining distinction between
bystander and preexisting duty theories of NIED recovery).
42 The doctors assert that we "affirmed the trial court's 'finding that no duty
was owed to the [plaintiff's] children under a negligent infliction of emotional distress
claim,' " quoting our discussion of the trial court proceedings, but the children's NIED
claim was not at issue on appeal. We did address the children's separate loss of
consortium claim. Chizmar, 896 P.2d at 212-13.
43 951 P.2d 851, 856 (Alaska 1998).
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----------------------- Page 15-----------------------
of the pregnancy's discovery - rather than to discovery of
the pregnancy itself. [44]
Here, on the other hand, taking Doan's allegations as true,45
she was in close proximity
to her daughter both at the time of the defendants' negligence and at the time of her
daughter's death; the defendants' negligence caused the death; and Doan's shock
occurred contemporaneously when she observed her daughter's body.
The doctors contend that Doan's NIED claim not only is barred by our
existing case law but also contravenes legislative policy, evident in AS 09.55.530-.560,
setting out procedural and evidentiary rules for medical malpractice cases, including
limitations on damages. But none of the cited statutes address the viability of a bystander
NIED claim. And although the the doctors predict that allowing NIED claims in
circumstances like these"[will]greatly burden themedical community,"we note that our
case law has never excepted "the medical community" from NIED claims. Such claims
involving medical care providers have been available since we decided Kavorkian III in
1986, subject to the same stringent requirements of proof applicable in other tort
46
contexts, and they have not prompted a crisis of care or a legislative response.
44 Id.
45 See Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757-58 (Alaska
2008) ("[T]he non-movant's version of the facts must be accepted as true and capable
of proof, and we make no attempt to weigh the evidence or evaluate witness credibility.
All reasonable inferences to be drawn from the facts presented must be drawn in favor
of the non-moving party." (footnote omitted)).
46 The doctors rely on cases from several other states besides the later
California cases that narrowed the Dillon test. Other jurisdictions reject NIED claims
in the medical malpractice context for different reasons. Several disallow them because
of the bystander's likely inability to distinguish between proper and negligent medical
care - a rationale which supports our decision here. See Squeo v. Norwalk Hosp. Ass'n,
(continued...)
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We conclude, in sum, that a bystander's claim for NIED remains as it was
explained in Kavorkian III , Croft, Mattingly, and Beck :
Where, as here, the plaintiff experiences shock as the result
of a sudden sensory observation of a loved one's serious
injuries during an uninterrupted flow of events following
"closely on the heels of the accident," such emotional injury
is foreseeable and the plaintiff is entitled to assert a claim for
NIED.[47]
The test contains no requirement that the plaintiff contemporaneously comprehend that
the loved one's injuries were negligently caused. Doan's complaint stated a claim for
relief under a bystander theory of recovery for NIED, and the claimshould have survived
summary judgment.48
46 (...continued)
113 A.3d 932, 946 (Conn. 2015) ("[T]he rule [limiting NIED claims to cases of gross
negligence obvious to a lay observer] recognizes that laypeople are not qualified to
assess whether most types of medical judgments and procedures meet the relevant
standard of care."); Edinburg Hosp. Auth. v. Treviño, 941 S.W.2d 76, 81 (Tex. 1997) ("A
bystander may not be able to distinguish between medical treatment that helps the patient
and conduct that is harmful."). The Wisconsin Supreme Court has decided that the
state's Medical Malpractice Act "exclusively governs all claims arising out of medical
malpractice" and that bystander NIED claims are not allowed because they are not
included in the Act. Phelps v. Physician's Ins. Co. of Wis., Inc., 768 N.W.2d 615, 635-
36 (Wis. 2009). We do not discern a consistent treatment of such claims by other state
courts that should make us reconsider our own case law.
47 Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 110
(Alaska 1992).
48 We note finally that the doctors raise several alternative arguments that
were not addressed by the superior court, including: (1) that Doan's NIED claim is
entirely barred by the wrongful death statute, AS 09.55.580, and (2) that Doan has a
disqualifying conflict of interest as both representative of the estate and individual
plaintiff on the NIED claim. Because the superior court has not addressed these issues,
(continued...)
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----------------------- Page 17-----------------------
V. CONCLUSION
We REVERSE the entry of summary judgment against Doan on her claim
for negligent infliction of emotional distress and REMAND the case to the superior court
for further proceedings consistent with this opinion.
48 (...continued)
we do not decide them on this petition.
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----------------------- Page 18-----------------------
WINFREE, Justice, concurring.
I write separately to (1) elaborate on the distinction between the negligent
infliction of emotional distress (NIED) claim requirements that a bystander-plaintiff
(a) be physically present at the injury-causing event and (b) contemporaneously
recognize that the injury-causing event was the result of someone's tortious conduct; and
(2) address the separate concurring opinion's focus on our past rejection of the physical
presence requirement.
This matter comes to us on petition for review from the superior court's
summaryjudgmentorder dismissing NixolaDoan's bystander NIEDclaim. Thesuperior
court's legal rationale was that our existing NIED case law requires a bystander-plaintiff
- contemporaneously with the shocking observation of a loved-one's harm - to
specifically recognize that a tort brought about that harm. We accepted Doan's
unopposed petition for review to consider only that legal ruling. Today's decision
correctly concludes that the superior court's interpretation of our existing case law was
incorrect. A bystander-plaintiff, even a bystander-plaintiff asserting an underlying
medicalmalpracticeclaim,does not need to proveacontemporaneous understanding that
the loved-one's harm was caused by tortious conduct.
The separate concurring opinion suggests that today's decision expands
liability under Alaska's NIED case law, especially in the medical malpractice context.
Today's decision does nothing of the kind. Our existing NIED case law never has
included, and does not now include, the legal requirement the superior court imposed;
our existing NIED case law never has supported (or even suggested), and does not now
support, a special carve-out for NIED claims based on underlying medical malpractice
torts. Today's decision in no way expands NIED liability; it instead rejects a new legal
theory which, if adopted, would limit NIED liability.
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The bulk of the separate concurring opinion's discussion relates to a legal
issue that was not ruled on by the superior court, was not a subject of our granted petition
for review, was not briefed by the parties, and was not considered by this court. The
separate concurring opinion questions our existing NIED case law regarding when a
bystander must observe a loved-one's harm, and it posits that we should follow the
California Supreme Court's Thing v. La Chusa decision by limiting NIED claims to
1 This court rejected that
bystanders who actually are present at the harm-causing event.
course nearly 30 years ago in Beck v. State, Department of Transportation & Public
2 The separate concurring opinion concludes that Beck was erroneously
Facilities.
decided and failed "to place sensible limits on NIED claims" - an issue not raised in
this petition for review - and that it is only the doctrine of stare decisis that causes
joinder in today's decision.
But even if this court had, nearly 30 years ago, decided Beck differently and
followed Thing, today's decision - addressing whether a bystander-plaintiff must
contemporaneously appreciate that tortious conduct underlies the injury-causing event
- would be the same. The facts of Beck and Thing are similar. In Beck a mother drove
to the site of her daughter's vehicle accident and then to a hospital where she first saw
her daughter's injured body.3 The mother later sued the state for NIED for failure to
maintain road conditions.4 In Thing a son was struck by a car.5 Although his mother was
1 771 P.2d 814, 829-30 (Cal. 1989).
2 837 P.2d 105, 110 (Alaska 1992).
3 Id. at 109.
4 Id.
5 771 P.2d at 815.
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6
nearby, she did not see or hear the accident. The mother became aware of the accident
7
moments later; she rushed to the scene and saw her son lying in the street.
The mother
8 In neither case was the bystander-plaintiff
subsequently sued the car's driver for NIED.
aware, upon first seeing the victim, that the injuries were a result of someone's
negligence.
The Thing court reversed precedent and created a new physical-presence
requirement for bystander-NIED claims: The plaintiff must be "present at the scene of
the injury-producing event at the time it occurs and . . . then aware that it is causing
injury to the victim."9 But the Thing court did not require a bystander-plaintiff to
understand, when witnessing the victim's injury, that the injury was caused by
negligence or other tortious conduct. It was only later, in Bird v. Saenz, that the
California Supreme Court further required - in the context of a medical malpractice
claim - that a bystander-plaintiff demonstrate contemporaneous awareness of medical
10 In that case plaintiffs sued
negligence in connection with the injury-producing event.
defendant medical providers for NIED related to healthcare provided to the plaintiffs'
mother.11 Because the rule adopted in Thing required the plaintiff to "be aware of the
connection between the injury-producing event and the injury," the Bird court decided
that "unperceived medical errors hidden in a course of treatment" could not serve as an
6 Id.
7 Id.
8 Id.
9 Id.
10 51 P.3d 324, 330 (Cal. 2002).
11 Id. at 325-26.
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12
injury-producing event for purposes of NIED claims. But the Bird court indicated that
some forms of medical malpractice still may support an NIED claim, explaining:
This is not to say that a layperson can never perceive medical
negligence, or that one who does perceive it cannot assert a
valid claim for NIED. To suggest an extreme example, a
layperson who watched as a relative's sound limb was
amputated by mistake might well have a valid claim for
NIED against the surgeon. Such an accident, and its
injury-causing effects, would not lie beyond the plaintiff's
understanding awareness. But the same cannot be assumed
of medical malpractice generally. [13]
Although Bird relied on Thing to create an additional NIED requirement, at least in the
medical malpractice context, Thing itself did not require a bystander-plaintiff claiming
NIED to be aware of underlying tortious conduct when seeing the injury-producing
event.
The doctors in this case understand the distinction between the Thing and
Bird holdings. Theyposit that, notwithstanding Beck 's rejection of Thing's requirements
that the bystander be physically present and observe the injury-causing event, we should
followcourts defining "injury-causing event"in the medical malpractice context to mean
obviously (to the bystander) negligent medical care. Under this view - which today's
decision rejects - the absence of a contemporaneous recognition of negligent medical
care is cast as the bystander's failure to recognize that an injury-causing event has
occurred.
Adherence to Beck is not at issue in this petition for review. The question
raised by the petition for review is whether we should impose a new restriction for NIED
claims based on allegations of underlying medical malpractice. I agree with today's
12 Id. at 331.
13 Id. at 329.
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decision to reject the proposed restriction; I disagree with the separate concurring
opinion that the result is mandated by stare decisis adherence to Beck.
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----------------------- Page 23-----------------------
STOWERS, Chief Justice, concurring.
I concur in the result reached by the court, but only under the compulsion
1 Croft
of our precedent in Tommy's Elbow Room, Inc. v. Kavorkian (Kavorkian III),
2 3 and especially Beck v.
Mattingly v. Sheldon Jackson College,
ex rel. Croft v. Wicker,
4
State, Department of Transportation & Public Facilities. While the court concludes
here that a "bystander's claim for negligent infliction of emotional distress remains as
it was explained in Kavorkian III, Croft, Mattingly, and Beck,"5 I worry this case
represents another expansion of liability - particularly in the medical malpractice
context where the legislature has acted to constrain tort liability.6
Inourformativebystander negligent infliction ofemotional distress(NIED)
cases, the plaintiffs observed a relative's injuries contemporaneously with or closely on
the heels of learning of the events that caused them. In contrast, Doan was in the hospital
waiting room when much of the alleged medical malpractice occurred, and upon seeing
her daughter's body, she was not contemporaneously aware of the "nature" of Tristana's
injuries, i.e., that Tristana's death was allegedly caused by the conduct of her doctors,
rather than by her underlying condition.
Doan's case is similar to Beck. As the court explains above, in Beck a
mother was at home when she learned that her daughter had been involved in an
1 727 P.2d 1038 (Alaska 1986).
2
737 P.2d 789 (Alaska 1987).
3 743 P.2d 356 (Alaska 1987).
4 837 P.2d 105 (Alaska 1992).
5 Op. at 16.
6
See AS 09.55.530-.560.
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7
automobile accident six miles away. The mother immediately drove to the scene, but
rescue workers prevented her "from approaching the wrecked vehicle which still
8 The mother then drove to the hospital where she "saw
contained her injured daughter."
9Among other claims the mother sued the State
her injured daughter for the first time."
for NIED. The State argued that we should limit NIED claims to cases where the
plaintiff was actually present at the scene of the injury-producing event and was aware
that it caused the injury to the victim.10 We explained: "The State urges us to restrict
NIED claims by applying the Dillon factors as strict requirements rather than guidelines,
the approach taken by the California Supreme Court in Thing v. La Chusa."11 But we
expressly declined to adopt the California Supreme Court's limitation on NIED liability,
explaining "that both justice and the policy favoring reasonable limitations on liability
12 We held "that one who is thrust,
[could] be served with a less restrictive approach."
either voluntarily or involuntarily, into such dramatic events and who makes a sudden
sensory observation of the traumatic injuries of a close relative in the immediate
aftermath of the event which produced them is no less entitled to assert a claim for his
or her emotional injuries than one who actually witnessed the event."13
7 837 P.2d at 109.
8 Id .
9 Id. at 110.
10 Id .
11 Id . (citing Dillon v. Legg, 441 P.2d 912 (Cal. 1968) and Thing v. La Chusa,
771 P.2d 814 (Cal. 1989)).
12 Id .
13 Id .
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In my view this court missed the opportunity to place sensible limits on
NIED claims in Beck. The rule articulated by the California Supreme Court in Thing was
a reasonable and necessary approach to bystander NIED claims:
[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 - a reaction beyond that which
would be anticipated in a disinterested witness and which is
not an abnormal response to the circumstances. [14]
The Thing court rightly recognized that "[l]ittle consideration [was] given in post-Dillon
decisions to the importance of avoiding the limitless exposure to liability that the pure
foreseeability test of 'duty' would create."15 The court retreated from its unwieldy
precedent in Dillon, which had created a progressively expansive class of possible
plaintiffs for bystander NIED claims.16 As the court concluded, "the societal benefits of
certainty in the law, as well as traditional concepts of tort law, dictate limitation of
bystander recovery of damages for emotional distress."17
Because this court purposefully and explicitly declined to join California
in tightening the law for bystander NIED claims in Beck, respecting the doctrine of stare
decisis I am compelled to follow the law as this court expressed it. I therefore concur in
the opinion of the court. But I am concerned that our case law is expanding the
14 Thing, 771 P.2d at 829-30 (emphasis added) (footnotes omitted).
15 Id. at 821 (referencing Dillon, 441 P.2d 912).
16 Id. at 828-30.
17
Id. at 815.
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boundaries of NIED into an ever-widening circle of liability; at some point, almost any
conceivable emotional injury following injury to a closely related relative will be
foreseeable, and if foreseeable, then actionable.
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