Bowen v. Lumbermens Mut. Cas. Co
In Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), a mother sought damages for negligent infliction of emotional distress arising from a fatal accident in which a vehicle negligently collided with her 14-year-old son as he was riding his bike.
Although the mother in Bowen did not witness the collision, she arrived at the scene a few minutes after it occurred and witnessed its aftermath. See id.
The mother "saw her severely injured son trapped beneath the defendant's car and watched the prolonged rescue attempt." 183 Wis. 2d at 634-635.
She thereafter suffered "extreme emotional and psychic injuries with accompanying physical symptoms including hysteria, insomnia, nausea and the disruption of work and family relationships." Id.
The Bowen court determined that in order to appropriately draw the line between recoverable and nonrecoverable claims, the court must consider the severity of the injury to the victim, the relationship of the plaintiff to the victim, and the extraordinary circumstances surrounding the plaintiff's discovery of the injury. See id.
In establishing this line, the court recognized:
The tort of negligent infliction of emotional distress compensates plaintiffs whose natural shock and grief upon the death or severe physical injury of a spouse, parent, child, grandparent, grandchild, or sibling are compounded by the circumstances under which they learn of the serious injury or death. This tort reflects, for example, the intensity of emotional distress that can result from seeing the incident causing the serious injury or death first hand or from coming upon the gruesome scene minutes later. (183 Wis. 2d at 659.)
The Court held that "the traditional elements of a tort action in negligence-negligent conduct, causation and injury should serve as the framework for evaluating a bystander's claim of negligent infliction of emotional distress." 183 Wis. 2d at 652-653.
The court further held that "a claimant for negligent infliction of emotional distress need not prove physical manifestation of severe emotional distress." 183 Wis. 2d at 653.
The Bowen court recognized, however, that even where a claimant has satisfied the elements of a cause of action for negligent infliction of emotional distress, "a court may decide, as a matter of law, that considerations of public policy require dismissal of the claim." 183 Wis. 2d at 654.
"These public policy considerations are an aspect of legal cause, although not a part of the determination of cause-in-fact." Id.
To determine whether public policy considerations would preclude liability, a court must look to three factors: "the severity of the injury to the victim, the relationship of the plaintiff to the victim, and the extraordinary circumstances surrounding the plaintiff's discovery of the injury." 183 Wis. 2d at 660.
The court must consider these factors on a case-by-case basis. See id. In contemplation of these public policy considerations, the Bowen court emphasized that the compensable serious emotional distress of a bystander under the tort of negligent infliction of emotional distress is not measured by the acute emotional distress of the loss of the family member. Rather, the damages arise from the bystander's observance of the circumstances of the death or serious injury, either when the incident occurs or soon after. 183 Wis. 2d at 660.
Borrowing the requirement of severe emotional distress from the tort of intentional infliction of emotional distress, the Bowen court recognized the following definition:
Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is part of the price of living among people. The law intervenes only where the distress is so severe that no reasonable person could be expected to endure it. (183 Wis. 2d at 652-653 n.23.)