Bowen v. Lumbermens Mutual Casualty Co.
1994 Wisc. LEXIS 60, 517 N.W.2d 432, 183 Wis. 2d 627 (1994)
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Rule of Law:
A bystander may recover for the negligent infliction of severe emotional distress if the bystander is a close relative of the victim and observes the victim's death or serious injury, or observes the gruesome aftermath of the event soon after it occurs, without needing to have been in the 'zone of physical danger' or to exhibit physical manifestations of the distress.
Facts:
- On October 12, 1990, a vehicle driven by Elroy J. Rautmann negligently collided with 14-year-old Steven Bowen, who was riding his bicycle.
- Steven Bowen sustained fatal injuries in the collision and never regained consciousness before he died in a hospital shortly thereafter.
- Steven's mother, Sharon Bowen, did not witness the collision happen.
- Sharon Bowen arrived at the scene a few minutes after the collision occurred.
- Upon arriving, Sharon Bowen witnessed her severely injured son trapped beneath Rautmann's vehicle and watched the subsequent rescue attempt.
- As a result of this experience, Sharon Bowen alleged she suffered extreme emotional and psychic injuries.
Procedural Posture:
- Sharon Bowen and the Estate of Steven Bowen sued Elroy J. Rautmann and his insurer in the circuit court for Sheboygan county (trial court).
- The defendants filed a motion for partial summary judgment to dismiss the claims for negligent infliction of emotional distress.
- The circuit court granted the defendants' motion and dismissed both NIED claims.
- Sharon Bowen and the Estate of Steven Bowen, as appellants, appealed the dismissal to the Wisconsin Court of Appeals (intermediate appellate court).
- The Court of Appeals affirmed the circuit court's judgment, upholding the dismissal of both claims.
- The Wisconsin Supreme Court granted review of the Court of Appeals' decision.
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Issue:
Does a bystander who was not in the 'zone of danger' and did not witness the accident itself, but arrived moments later to see its gruesome aftermath involving a close relative, state a valid claim for negligent infliction of emotional distress under Wisconsin law?
Opinions:
Majority - Abrahamson, J.
Yes. A bystander can state a claim for negligent infliction of emotional distress even if they were not in the zone of danger, so long as certain public policy factors are met. The court abandons the 'zone of danger' and 'fear for one's safety' rules, replacing them with a traditional negligence analysis limited by public policy. A plaintiff must prove negligent conduct, causation, and a resulting injury of severe emotional distress, but physical manifestation of that distress is no longer required. For bystander claims, courts must weigh public policy factors to determine if liability is appropriate, focusing on three key elements: 1) the victim suffered a fatal or severe injury; 2) the plaintiff and victim are closely related (spouse, parent, child, grandparent, grandchild, or sibling); and 3) the plaintiff observed an extraordinary event, meaning the incident itself or its gruesome aftermath soon after it occurred with the victim at the scene. The court concluded Sharon Bowen’s claim satisfied these criteria and was not barred by public policy. However, the court dismissed the estate's claim for Steven Bowen's pre-impact emotional distress as too speculative and likely to lead to fraudulent claims, which is a public policy ground for dismissal.
Concurring - Wilcox, J.
Yes. The concurring opinion agrees with allowing Sharon Bowen's claim to proceed but expresses concern about the majority's broader holding. The justice agrees that the specific public policy limits applied to bystander claims (close relationship, severe injury, direct observation) are effective in ensuring the claim's authenticity. However, the concurrence worries that abolishing gatekeeping rules like the physical manifestation requirement for all NIED cases, and relying solely on a basic negligence framework, will open the door to fraudulent claims and excessive litigation in situations without such clear, verifiable trauma, such as a 'near miss' traffic incident. The justice suggests that plaintiffs in such cases should have the burden of producing some extrinsic, verifiable evidence to support their claim of emotional injury to survive a motion to dismiss.
Analysis:
This decision represents a significant evolution in Wisconsin's tort law, formally abandoning the rigid 'zone of danger' rule for bystander NIED claims that had been in place since 1935. By replacing it with a more flexible, policy-based framework, the court aligned Wisconsin with a modern trend that acknowledges the foreseeability of severe emotional trauma to close relatives witnessing horrific events. This ruling expands the scope of liability for negligent tortfeasors but also establishes a new, principled set of limitations (severity of injury, relationship, and observation of aftermath) designed to prevent a 'floodgate' of litigation and ensure the authenticity of claims. Future cases will likely focus on defining the boundaries of what constitutes 'soon after' the incident and a 'gruesome aftermath.'
