Opinion
No. 28259.
August 6, 2007.
Appeal from Circuit Court of Laclede County, Hon. Theodore B. Scott.
Timothy J. Boone, Counsel for Appellant.
Randy R. Cowherd and Kregg T. Keltner, Counsel for Respondent.
Plaintiff, a professional trucker from Ohio, was eastbound near Lebanon on Interstate 44. Defendant, driving his family west toward their Stone County home, crossed the grassy median and hit plaintiff's tractor-trailer head on. Uninjured, plaintiff got out and checked defendant's car. He saw defendant and his wife badly hurt and their young daughter killed, causing him post-traumatic stress disorder. Plaintiff sued defendant for negligent infliction of emotional distress.
We refer to plaintiff in the singular form since his wife's consortium claim is derivative of his. Caples v. Earthgrains Co ., 43 S.W.3d 444, 447 n. 1 (Mo.App. 2001).
Plaintiff's knees contacted the steering wheel and dash, but he needed no medical treatment. "So," plaintiff's counsel said at oral argument, "if you want to exclude that and say there was no physical injury of any kind as a result of impact injury, I would agree."
Plaintiff was not treated for physical or emotional injury from the impact itself or any pre-impact fear of collision. Plaintiff's diagnosable emotional distress, medical treatment, and lost work time were from viewing the deceased child after the collision. Thus, his damages cognizable under the Bass test came from post-accident viewing of injured strangers.
Plaintiff admitted paragraph 7 of defendant's summary judgment motion, stating that his "emotional struggles, grief and feelings of guilt after the collision stemmed from his viewing of defendant's deceased daughter, not from the collision itself[.]" Plaintiff's counsel agreed at oral argument that these paragraph 7 "emotional struggles, grief and feelings of guilt," and the medical expenses and lost wages relating thereto, represented all of plaintiff's damages and the "universe" of what he was suing to recover.
Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. banc 1983), replaced the impact rule with a requirement that, to warrant recovery, emotional distress must be medically diagnosable and serious enough to require medical attention.
The trial court granted defendant summary judgment since plaintiff, when viewing the deceased child, was not in the zone of danger and did not reasonably fear injury to himself. The court also ruled that defendant, who was unconscious after the accident, had no duty to protect plaintiff from seeing defendant's deceased child.
We review summary judgments de novo, and may affirm on any basis supported by the record. In re Estate of Blodgett , 95 S.W.3d 79, 81 (Mo. banc 2003). This is true even if the trial court relied on a different theory, or if the court's stated reason was wrong. Sisk v. Union Pacific R. Co. , 138 S.W.3d 799, 809 (Mo.App. 2004).
Missouri courts have not faced the precise issue before us. But looking to other states for guidance, we find several reasons to affirm the judgment. As to the trial court's first ground, other courts have treated zone-of-danger plaintiffs who escape injury from the collision itself, then are harmed by seeing injured persons thereafter, as seeking "bystander recovery." Hislop v. Salt River Project Agricultural Improvement and Power District , 5 P.3d 267, 269 (Ariz.App. 2000); Engler v. Illinois Farmers Insurance Co ., 706 N.W.2d 764, 768 n. 1. (Minn. 2005). Missouri, thus far, has not permitted bystander recovery. Asaro v. Cardinal Glennon Memorial Hospital , 799 S.W.2d 595, 599-600 (Mo. banc 1990).
Carlson v. Illinois Farmers Insurance Co ., 520 N.W.2d 534 (Minn.App. 1994) supports the trial court's alternative "no duty" ground:
While the tortfeasor had a duty to protect both Carlson and her friend from physical harm because they were passengers in his car, he had no duty to protect Carlson from distress arising from the fate of her friend. To hold otherwise would impose on a negligent tortfeasor liability out of proportion to his culpability.
Id . at 537. In the same sense, defendant's duty was to drive so as not to physically harm his family or plaintiff. Defendant's breach of duty not to injure his own daughter is no basis for plaintiff to recover, and defendant had no duty or ability (being unconscious) to protect plaintiff from seeing defendant's deceased child. See Marschand v. Norfolk and Western Ry. Co., 876 F. Supp. 1528, 1535-36 (N.D. Ind. 1995) (emotional distress from witnessing harm to another is not caused by a breach of duty owed to the plaintiff), abrogation on other (ADA) grounds recognized in Coleman v. Keebler Co ., 997 F. Supp. 1102, 1112 (N.D. Ind. 1998). Several FELA cases, including one from Missouri, similarly describe a zone-of-danger plaintiff recovering "for emotional injury caused by fear of physical injury to himself ?" (emphasis added). Consolidated Rail Corp. v. Gottshall , 512 U.S. 532, 556 (1994); Marschand , 876 F. Supp. at 1534-35; Butler v. The Burlington Northern , 119 S.W.3d 620, 626-27 (Mo.App. 2003).
A third basis for affirmance, not mentioned by the trial court or parties, is that plaintiff's claims generally can be asserted only by someone closely related to the victim. The Restatement (Second) of Torts Section 436(c)'s standard is "immediate family." The new Restatement will allow "a close family member" to recover. The great weight of authority nationwide demands a familial or special relationship between plaintiff and victim. See, e.g., Milberger v. KBHL, LLC , ___ F. Supp. ___, 2007 WL 624370 (D. Hawaii 2007); Hislop , 5 P.3d at 269-72; Thing v. La Chusa , 771 P.2d 814, 829 n. 10 (Cal. 1989); Yovino v. Big Bubba's BBQ, LLC , 896 A.2d 161, 163-67 (Conn.Super. 2006); Smith v. Toney , 862 N.E.2d 656, 660-61 n. 2 (Ind. 2007); Engler , 706 N.W.2d at 768-72; Grotts v. Zahner , 989 P.2d 415, 416 (Nev. 1999); Montoya v. Pearson , 142 P.3d 11, 13-16 (N.M.App. 2006); Stamm v. PHH Vehicle Management Services, LLC , 822 N.Y.S.2d 240, 242-43 (App.Div. 2006); and additional cases collected in the Reporters' Note for Restatement (Third) Section 47, Comment e and ALR5th annotation cited in notes 3 and 4, supra. Asaro 's failure to discuss family/special relationship does not mean our supreme court meant to omit this requirement. Asaro 's facts do not support such a conclusion, since the case involved a mother-child situation. Asaro 's tenor is decidedly conservative; the court denied the mother's claim and waxed long on the dangers of broad emotional distress liability and the need for line-drawing to circumscribe such risks. 799 S.W.2d at 598-99. We also note (as in Hislop , 5 P.3d at 269), the weight of nationwide authority at Asaro 's time barring such recovery absent a family relationship. A relationship limitation inherent in Asaro 's facts, consistent with its conservative tone, and employed by the Restatement (sections of which Asaro cited) and the vast majority of cases then and now, is wholly consistent with Asaro 's reasoning and result. We need not decide whether the requisite standard is familial or another close relationship, as plaintiff has pleaded or proven neither.
Dale J. Gilsinger, Annotation, Relationship Between Victim and Plaintiff-Witness as Affecting Right to Recover Under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Is Not Member of Victim's Immediate Family, 98 A.L.R.5th 609, Section 2(a) (2002 Supp. 2007).
Restatement (Third) of Torts, Liability for Physical and Emotional Harm Section 47 and Comment e (Tentative Draft No. 5, 2007), approved by the American Law Institute's membership at its May 2007 annual meeting.
To the extent plaintiff claims these are bystander cases, while he was in a zone of danger, we have two responses. Some of these are zone-of-danger cases. See, e.g., Hislop , 5 P.3d at 268, 269; Engler , 706 N.W.2d at 768; Stamm , 822 N.Y.S.2d at 242. Also, even if plaintiff was in a pre-impact zone of danger, he was not injured by that danger or apprehension of it, but by later viewing injured persons while in no danger himself. As previously noted, Hislop ( 5 P.3d at 269) and Engler ( 706 N.W.2d at 768) deemed these "bystander recovery" claims, which in Missouri, Asaro would bar.
Defendant's motion to strike plaintiff's brief and dismiss this appeal for Rule 84.04(c) violations, taken with the case, is denied.
I respectfully dissent from the majority opinion, which affirms a grant of summary judgment in favor of Defendant, because I believe there are disputed material facts. The majority treats this appeal as if it is a pure, abstract, question of law to be decided as a case of first impression; however, that is not the case. If this case proceeds to trial and, if the facts support the conclusions reached by the majority, this Court could then address the primary issue addressed by the majority opinion ? whether emotional distress damages may be recovered when there is no familial or another close relationship between a plaintiff and a victim. At this time, such discussions are premature.
The majority opinion makes three broad, sweeping statements of law, all of which, apparently, have not been previously addressed in Missouri and, as such, are issues of first impression. First, the majority holds that a plaintiff in an auto collision, who escapes physical "injury" from the collision itself but is subsequently harmed thereafter by seeing injured persons, is a "bystander." Second, it holds that a driver's only duty is to drive and protect others from physical harm. A driver has no duty to protect others from any distress arising from viewing physical harm and the death of others. Finally, the majority opinion expressly limits Asaro v. Cardinal Glennon Memorial Hosp. , 799 S.W.2d 595 (Mo. banc 1990), by denying recovery to a plaintiff for emotional distress arising out of an injury to a third person unless plaintiff can establish a "familial or another close relationship" between himself and said third person. All of these pronouncements of law derive from one inconclusive answer to a paragraph in a summary judgment motion.
As noted in the majority opinion, Plaintiff was hit head-on by Defendant's car. He claimed in his amended petition:
As a direct and proximate result of the negligent acts and omissions of the Defendant, Plaintiff feared for his own life and safety and sustained the following injuries and damages:
injuries, including minor physical injuries and post traumatic stress disorder;
past expenses for medical treatment and medications in excess of $1,623.57;
past wage and income loss in excess of $45,000; and
past pain and suffering, mental anxiety, emotional trauma and anguish, stress, which significantly affected his ability to perform usual daily activities, including returning to work.
(Emphasis added).
Both parties moved for summary judgment. The paragraph in Defendant's motion for summary judgment on which the majority opinion apparently relies on in its affirmation of the motion is paragraph 7. Paragraph 7 of the uncontroverted facts in Defendant's motion for summary judgment stated, "Plaintiff's emotional struggles, grief and feelings of guilt after the collision stemmed from his viewing of [D]efendant's deceased daughter, not from the collision itself[.]" (Emphasis added). Plaintiff filed a motion entitled, "Plaintiffs' Memorandum Contra Defendant's Motion for Summary Judgment/Plaintiff's Motion for Summary Judgment," in which he responded to Defendant's statement of uncontroverted facts, as required by Rule 74.04(c)(2). Plaintiff's response to paragraph 7 admitted that Plaintiff "was emotionally scarred after having witnessed a child die" and did not deny any portion of that paragraph.
All rule references are to Missouri Court Rules (2007), unless otherwise specified.
Defendant now argues, and the majority opinion apparently finds, that Plaintiff's admittance of paragraph 7 means that all of his alleged injuries, and thus his entire cause of action, were caused solely from viewing the deceased daughter. That position is simply not supported by Plaintiff's answer to paragraph 7 or the remaining record.
It is beyond question that summary judgment is upheld on appeal only if there is no genuine dispute as to a material fact. Hayes v. Show Me Believers, Inc. , 192 S.W.3d 706, 707 (Mo. banc 2006). I believe the questions of whether Plaintiff suffered any physical injuries as a result of the accident and whether the accident contributed in any way to the emotional injuries Plaintiff suffered upon viewing the deceased child are genuine disputes of material fact and, therefore, summary judgment was improper. This result, and interpretation of Plaintiff's admission to paragraph 7, is especially warranted considering we view the record in the light most favorable to Plaintiff, the non-movant. Wehmeyer v. FAG Bearings Corp. , 190 S.W.3d 643, 648 (Mo.App.S.D. 2006).
First, the majority opinion ignores a crucial aspect of this case and instead states, as fact, that Plaintiff's "diagnosable emotional distress, medical treatment, and lost work time were from viewing the deceased child after the collision." Whether or not Plaintiff admitted such is a question presented to us in this appeal and is only mentioned in a footnote in the majority's opinion. (Majority opinion, n. 3) First, paragraph 7 does not conclusively state that all of Plaintiff's injuries were "solely" from viewing the deceased daughter. Instead, paragraph 7 says that the emotional struggles, grief and feelings of guilt after the collision "stemmed" from viewing the deceased daughter.
The word "stem" has many definitions but the most pertinent in this context is to "have or trace an origin." Merriam-Webster's Dictionary 1222 (11th ed. 2005). The answer admits that Plaintiff's emotional injuries may have originated upon the viewing of the deceased daughter, but additional sources may have contributed to the severity of his emotional response. For example, if Plaintiff viewed the deceased daughter without having just been hit head-on by a vehicle crossing the center lane, his emotional response may have been different. It is his possible post-accident condition, for example being distraught, fearful, and/or agitated, that may have contributed to his emotional response even though the response originated from seeing the deceased child. The trial court, and this Court in affirming the trial court, makes a quantum leap from Plaintiff's admission to the factual conclusion that Plaintiff's emotional struggles, grief and feelings of guilt were caused solely by viewing the deceased child. Clearly, however, this is an evidentiary question.
Second, Plaintiff's pleadings allege "minor physical injuries." Paragraph 7 does not even address the physical injuries; instead, it addresses "emotional struggles, grief and feelings of guilt." The majority opinion states that Plaintiff was "uninjured" as a fact, but this is a conclusion not supported by the record before this Court. In a footnote, the majority implies that Plaintiff's counsel stated during oral arguments that Plaintiff suffered no physical injuries. (Majority opinion, n. 2) To support this claim, the majority quotes Plaintiff's counsel as saying, "So, if you want to exclude that and say there was no physical injury of any kind as a result of impact injury, I would agree." ( Id.) In order to put this quote in context, the following is a more complete recital of the segment of the oral argument where Plaintiff made that quote:
[Court]: Your petition alleges that the Plaintiff sustained certain injuries and damages. The injuries including minor physical injuries, medical treatment, wage loss and mental distress. Are you still claiming, for example, that he sustained physical injuries as a result of this accident? Physical injuries as a result of this accident?
[Plaintiff's Counsel]: He had a minor physical injury, and I mean very minor, in that his knees came into contact with the steering wheel and dash. There was no medical treatment required though, that's how minor it was. So, if you want to exclude that and say there was no physical injury of any kind as a result of impact injury, I would agree.
(Emphasis added).
This is far from an unambiguous or clear admission that Plaintiff did not suffer physical injuries. First, the question is rather confusing in that the court's question said, "for example." Plaintiff's counsel could have interpreted this as meaning the court was attempting to set up a hypothetical. Second, counsel's initial answer was a clear statement that Plaintiff "had a minor physical injury." This answer was unambiguous and clear. Only after giving this clear answer did counsel say, "if you want to exclude that and say there was no physical injury . . . I would agree." Counsel never says he "concedes" or "agrees" that there were no physical injuries. Instead, he says that if the court wants to say there were no physical injuries, possibly thinking the court was about to ask a hypothetical question, he would agree to that.
The majority opinion further states, in a footnote, that Plaintiff's counsel agreed at oral argument "that these paragraph 7 `emotional struggles, grief and feelings of guilt,' and the medical expenses and the lost wages relating thereto, represented all of [P]laintiff's damages and the `universe' of what he was suing to recover." (Majority opinion, n. 3) This opinion arises from the following portions of oral arguments:
[Court]: The main crux of this, of why we're here is paragraph 7 of Defendant's statement of uncontroverted facts. And what paragraph 7, if you want to turn to it . . . it says that Plaintiff's emotional struggles, grief and feelings of guilt after the collision, blah, blah, blah. The description there, "emotional struggles, grief and feelings of guilt," does that represent all of your client's damages in this case, that he is suing for, except for the lost wages and the medical treatment that related to those?
[Plaintiff's Counsel]: I think that's an accurate statement.
Later, Plaintiff's counsel explained:
[Court]: And that's what I'm getting at because you have admitted by this statement that, as I understand it, that the totality of damages stem from seeing the child seconds later, milliseconds later, and not from the collision itself.
Plaintiff's Counsel: No, the totality of damages of all his damages . . . First, it was part of his damages that he also, in his testimony as well as affidavit in support of the plaintiffs' motion, that he also feared for his own life.
In finding that Plaintiff "escape[d] injury" from the collision itself the majority is confusing the terms injury and damages. "An `injury' as an invasion of a legally protected right may cause either general or special damages." Porter v. Crawford Co. , 611 S.W.2d 265, 271 (Mo.App.W.D. 1980) (emphasis added). Plaintiff's agreement that his entire damages claim is made up of damages associated with his "emotional struggles, grief and feelings of guilt" does not mean that Plaintiff did not suffer physical injuries associated with the accident. Instead, Plaintiff's counsel admits that Plaintiff's physical injuries were "very minor." The fact that Plaintiff's "very minor" physical injuries did not require medical attention and did not cause Plaintiff to miss work does not mean the injuries did not occur and do not exist. To rely upon ambiguous answers to ambiguous questions in an oral argument is troubling, particularly since the majority opinion is basing its decision on claimed admissions to assert that Plaintiff abandoned his entire point relied on and brief.
As with any tort, the victim in a negligent auto accident may have a legal and a practical necessity for general and/or special damages. See Condos v. Associated Transports, Inc., 453 S.W.2d 682, 689 (Mo.App. St.L.D. 1970). "`[G]eneral damages are those that flow as a natural and necessary result of the act complained of and `special damages' are damages which actually result from the act by reason of the special circumstances of the case and not as a necessary result of the act." Porter , 611 S.W.2d at 271.
These factual determinations, whether Plaintiff suffered physical injuries as a result of the accident and whether and to what extent the accident contributed to the emotional injuries Plaintiff suffered, are material in cases, such as this, claiming negligent infliction of emotional distress. The majority's first holding is that "zone-of-danger plaintiffs who escape injury from the collision itself, then are harmed by seeing injured persons thereafter, [seek] `bystander recovery.'" (Emphasis added). It then states that Missouri has, thus far, not permitted bystander recovery. The majority opinion admits Plaintiff was directly involved in an accident, then leaps to finding no injuries to Plaintiff, then to no recoverable damages, and finally to making Plaintiff a "bystander" with no analysis or Missouri cases to support that determination. Plaintiff is not a bystander. The record does not support the majority's finding that Plaintiff, in this case, "escape[d] injury" from the collision itself, nor does an analysis of the law support the conclusion that Plaintiff is a bystander. These determinations are critical. As the court in Pieters v. B-Right Trucking, Inc. , 669 F.Supp. 1463 (N.D. Ind. 1987), stated:
State courts have employed three different rules when deciding whether emotional distress damages should be awarded: the impact rule, the zone of danger rule, and the foreseeability rule. The impact rule, the most restrictive of the three, provides that there can be no recovery for emotional distress when there has been no immediate physical impact to the plaintiff. The zone of danger rule provides that emotional distress damages can only be recovered if the plaintiff was within the range of ordinary physical peril. The foreseeability test, the least restrictive test, generally provides recovery where the defendant should have foreseen the fright or shock severe enough to cause substantial injury in a normal person.
Id . at 1466. There is also a "direct victim" theory, which "appears to be a relaxation of the impact rule: a plaintiff who suffers injury as a result of the defendant's negligence is allowed to recover for emotional distress suffered as a result of witnessing the death of another in the same accident." Montoya v. Pearson , 142 P.3d 11, 13 (N.M.App. 2006). Plaintiff received a direct impact injury and was certainly in the zone of danger, but the majority opinion simply denotes him as a "bystander" and, thus, determines that he may not recover.
Such a test, if adopted in Missouri, may be applicable in this case if a trier of fact determines that Plaintiff did in fact, as alleged in his petition, suffer "minor physical injuries" as a result of the accident. See Long v. PKS, Inc., 12 Cal.App.4th 1293 (Cal.App. 1.D. 1993).
In Bass v. Nooney Co. , 646 S.W.2d 765 (Mo. banc 1983), the Missouri Supreme Court abrogated the impact rule and appeared to adopt a foreseeability test. The plaintiff was stuck in an elevator for approximately thirty minutes. Id . at 766-67. Afterwards, she saw a psychiatrist who testified that she was suffering from "extreme anxiety" which "was precipitated by being stuck in the elevator." Id. at 767. Plaintiff brought suit for mental distress caused by the negligent maintenance of the elevator. Id. at 766. The supreme court abrogated the impact rule and held that the plaintiff could:
recover for emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.
Id. at 772-73.
In Asaro v. Cardinal Glennon Memorial Hosp. , 799 S.W.2d 595 (Mo. banc 1990), the court specifically adopted the zone of danger test for determining whether to allow recovery for emotional distress which arises "solely" from harm or peril to a third person. The plaintiff claimed that "[a]s a result of [the] alleged medical malpractice to her son, [the plaintiff] claims that she suffered emotional distress and seeks damages from these defendants for their negligent infliction of that emotional distress." Id . at 596 (emphasis in original). The supreme court held:
[I]n Missouri a plaintiff states a cause of action for negligent infliction of emotional distress upon injury to a third person only upon a showing: (1) that the defendant should have realized that his conduct involved an unreasonable risk to the plaintiff, (2) that plaintiff was present at the scene of an injury producing, sudden event, (3) and that plaintiff was in the zone of danger, i.e., placed in a reasonable fear of physical injury to his or her own person.
Id. at 599-600. It, therefore, appears that Missouri has two different standards, with the Bass foreseeability test applying when a defendant's negligence directly causes the emotional harm to plaintiff and the Asaro zone of danger test applying to cases where defendant's actions to a third party result in emotional harm to a plaintiff. The majority seemingly implies that Asaro 's zone of danger test applies in this case and enters its third holding, which limits Asaro by requiring a "familial or another close relationship" between any plaintiff and the third person whose injury results in emotional distress to plaintiff.
As the majority admits, the issue of whether Asaro should be limited in this way was "not mentioned by the trial court or parties." As such, it was not briefed by the parties and no facts were pled or developed to support it. On what may seem a minor point under the facts in this case, the majority reaches its holding that Plaintiff and the deceased child did not have a "familial or another close relationship" because Plaintiff has "pleaded or proven neither."
The only "facts" in the record that a "familial or another close relationship" does not exist is Plaintiff and his wife were Ohio residents and Defendant and his family lived in Stone County, Missouri. While it probably is a correct assumption in this case that Plaintiff did not know the deceased child, it is still just an assumption by this Court. Because the issue decided by this Court was never addressed in the trial court, there is no basis in the record for the conclusion that Plaintiff did not know the child. Simply being from different states does not support that conclusion. We must look at the record before the trial court and before us. The majority imposes a new limitation not discussed in Asaro requiring a "familial or another close relationship" between a plaintiff and the third person and then punishes Plaintiff for not pleading or proving such a relationship by affirming summary judgment when, until this limitation, such a relationship was not required. Because the majority now limits the holding of Asaro and requires a "familial or another close relationship" between Plaintiff and the deceased daughter it should remand on this issue to see if Plaintiff can establish such a relationship. "Where a possibility of proof exists which the plaintiff has not fully developed, a remand rather than reversal is permissible." Bass , 646 S.W.2d at 774.
The majority's second holding asserts that a driver's only duty is to drive and protect others from physical harm and a driver has no duty to protect others from any distress arising from viewing physical harm and the death of others. In support of this holding the majority quotes Carlson v. Illinois Farmers Ins. Co. , 520 N.W.2d 534, 537 (Minn.App. 1994). It further states, "Several FELA cases, including one from Missouri, similarly describe a zone-of-danger plaintiff recovering `for emotional injury caused by fear of physical injury to himself. . . .'" ( quoting Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 556 (1994)) (emphasis in majority opinion). This holding is directly contrary to the law of Missouri, specifically Asaro .
Asaro specifically allows a plaintiff to recover for "negligent infliction of emotional distress upon injury to a third person" so long as (1) the defendant should have realized his conduct involved an unreasonable risk to the plaintiff, (2) plaintiff was present at the scene of an injury producing, sudden event, and (3) plaintiff was in the zone of danger. Asaro , 799 S.W.2d at 599-600 (emphasis added). Therefore, unlike the majority opinion asserts, a zone of danger plaintiff can recover for more than "fear of physical injury to himself" because Asaro explicitly allows a zone of danger plaintiff to recover for emotional injury caused by a physical injury to a third person. Implicitly then, Asaro creates a duty in all people, including drivers, to not engage in conduct which would lead to emotional distress in a plaintiff upon injury to a third party, including distress arising from viewing physical harm and the death of others, as long as such conduct also meets its explicit three-prong test.
The majority opinion cites no Missouri cases directly on point in any of these three holdings to determine that a direct victim of an accident, claiming to have suffered emotional injuries arising in part from viewing the death of another person in the accident, cannot recover for the intentional infliction of emotional distress. I believe, this being an appeal of summary judgment, that it is too early to reach that issue. Without a more complete determination of the facts, specifically, whether Plaintiff suffered physical injuries in the accident and to what extent the accident contributed to Plaintiff's emotional injuries, it is improper to reach the discussion of whether the Bass or the Asaro test applies, whether we should limit the Asaro test to certain close or familial relationships, or whether we should adopt the "direct victim" theory for negligent infliction of emotional distress. Such analysis would be more proper after each party has a chance to present its evidence and the trier of fact reaches a conclusion as to whether Plaintiff had physical injuries, whether Plaintiff had a "familial or another close relationship" with the deceased child, and what the cause of Plaintiff's emotional injuries were. Furthermore, the decision granting summary judgment forecloses recovery for Plaintiff's physical injuries, even if they were described as minor in his pleadings. Plaintiff's fourth point properly raises the issue that he does not admit that the sole cause of Plaintiff's distress was viewing the body of the deceased child and that he did not admit that he did not suffer as a result of the collision itself. As such, I would reverse the grant of summary judgment and remand it for a trial on the issues.