Emotional
distress claim viable
By
David Ziemer
Wisconsin Law Journal
August
2, 2006
| What
the court held Case:
Camp v. Anderson, No. 2005AP2407. Issue:
Is a claim for negligent infliction of emotional distress limited to cases where
a bystander witnesses injury to a family member? Holding:
No. Regardless of the fact situation in which the claim arises, an action is viable
unless barred by public policy. Counsel:
Peterson, Paul D., Harper, William D., Burgan, Lori L., Woodbury, MN, for
appellant; Torvinen, Kyle H., Superior, for respondent. |
Negligent
infliction of emotional distress is a viable tort in Wisconsin, the Wisconsin
Court of Appeals held on July 25.
Steven
Camp is a 4-year-old, and Anthony Machones is a 13-year-old with Asperger’s
Syndrome, In 2000, Anthony and Steven were playing in the Camps’ yard with
Steven’s dog.
According
to an eyewitness, Anthony pulled some tall reeds or cattails out of the ground,
shoved them at the dog, and chased Steven with the cattails, with what appeared
to be feces on the end. The eyewitness later saw Anthony jump and land with both
feet on the dog. The dog was severely injured and was later euthanized.
Because
of Anthony’s condition, he was not charged with any delinquency.
However,
the Camps filed an action against Anthony and his parents, Harry and Brenda Anderson,
claiming intentional infliction of emotional distress against Anthony and negligent
supervision against the Andersons.
The
intentional infliction claim against Anthony was dismissed, and the Camps moved
to amend their complaint to allege negligent infliction of emotional distress
against Anthony.
Douglas
County Circuit Court Judge Michael T. Lucci denied the motion to amend the complaint,
holding that direct claims for negligent infliction of emotion distress are not
allowed under Wisconsin law. Judge Lucci also granted partial summary judgment
to the Andersons, limiting damages to property damage for the loss of the dog.
The
Camps appealed, and the Wisconsin Court of Appeals reversed in a decision by Judge
Gregory A. Peterson.
The
court held that Wisconsin law does recognize the tort of negligent infliction
of emotional distress in this case.
In
Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 517 N.W.2d 432 (1994), the
Wisconsin Supreme Court noted that the court is reluctant to allow claims for
negligent infliction of emotional distress, in the absence of any physical injury.
Nevertheless,
the court did not disallow such claims altogether. Instead, the court concluded
that the traditional elements of a tort action, combined with public policy considerations
for limiting liability, should provide the framework for evaluating a bystander’s
claim. Id., 183 Wis.2d at 652-653.
In
the case at bar, the court of appeals rejected the Andersons’ argument —
accepted by the trial court — that Bowen only allows bystander claims.
The
court cited language from Bowen that a plaintiff may claim negligent infliction
of emotional distress “regardless of the fact situation in which the claim
arises.”
The court
then distinguished the case of Rabideau v. City of Racine, 2001 WI 57, 243 Wis.
2d 486, 627 N.W.2d 795.
In
Rabideau, an off-duty police officer shot and killed Rabideau’s dog in front
of her. The court of appeals rejected Rabideau’s negligent infliction claim,
concluding that, despite the strong bonds formed between humans and pets, a dog
is only property under the law and public policy barred recovery for emotional
distress caused by damage to property.
Applying
Rabideau, the court agreed that the decision bars recovery for any emotional distress
Steven suffered as a result of witnessing the fatal injuring of his dog.
Nevertheless,
the court found Rab-ideau not dispositive, because the complaint alleges that
Steven suffered emotional distress not as a bystander, but due to Anthony’s
directly threatening Steven with the feces-covered cattail.
Accordingly,
the court concluded that the negligent infliction claim could go forward —
unless the trial court finds on remand that it is otherwise barred by public policy
— and reversed.
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here for Case Analysis.
David
Ziemer can be reached by email.
