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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

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,  

                                                                                                               

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                     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.  

                                                                                                                                                                                                                                                             



                                                                                                                                                                   -2-                                                                                                                                                       7370  


----------------------- Page 3-----------------------

 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...)  



                                                                                                                                 -3-                                                                                                                       7370
  


----------------------- 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...)
  



                                                               -4-                                                        7370
  


----------------------- 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.  



                                                                      -5-                                                               7370
  


----------------------- Page 6-----------------------

                             (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.  

                                   



                                                                                     -7-                                                                            7370
  


----------------------- 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).                                             



                                                                                                  -8-                                                                                         7370
  


----------------------- Page 9-----------------------

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).  



                                                                                -11-                                                                                 7370  


----------------------- Page 12-----------------------

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.").                                      



                                                                                                   -12-                                                                                             7370
  


----------------------- 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.  

                                                                   



                                                                                                                 -13-                                                                                                           7370
  


----------------------- Page 14-----------------------

                                                                                         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).  

                                                                             



                                                                             -14-                                                                       7370
  


----------------------- 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...)  



                                                                                                       -15-                                                                                                7370
  


----------------------- Page 16-----------------------

                            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. TreviƱo, 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...)  



                                                                                      -16-                                                                                7370
  


----------------------- 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.  



                                                          -17-                                                       7370  


----------------------- 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.  



                                                              -18-                                                         7370
  


----------------------- Page 19-----------------------

                                     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.                



                                                                                                                -19-                                                                                                         7370
  


----------------------- Page 20-----------------------

                                                                                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.   



                                                                            -20-                                                                       7370
  


----------------------- Page 21-----------------------

                                                                                                                    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.  



                                                                                           -21-                                                                                            7370  


----------------------- Page 22-----------------------

decision   to   reject   the   proposed   restriction;   I   disagree   with   the   separate   concurring  



opinion that the result is mandated by stare decisis adherence to                                                                                           Beck.  



                                                                                                           -22-                                                                                       7370
  


----------------------- 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.  



                                                                                   -23-                                                                            7370
  


----------------------- Page 24-----------------------

                                                          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 .  



                                                                  -24-                                                            7370
  


----------------------- Page 25-----------------------

                                          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.  



                                                                                                                                 -25-                                                                                                                         7370
  


----------------------- Page 26-----------------------

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.                                                                                                



                                                                                                                                     -26-                                                                                                            7370
  

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