Corso v. Merrill
1979 N.H. LEXIS 359, 119 N.H. 647, 406 A.2d 300 (1979)
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Rule of Law:
A parent who contemporaneously perceives a serious negligent injury to their child can recover for negligent infliction of emotional distress, even if outside the physical zone of danger, provided the distress is serious and manifests in objective physical symptoms.
Facts:
- Strella Hilton was driving her car on Hampstead Road in Derry on September 27, 1976.
- Hilton's vehicle struck eight-year-old Katherine Corso.
- The Corso family home was located approximately fifty feet from the scene of the accident.
- Lolita Corso, Katherine's mother, was in her kitchen and heard a 'terrible thud' from the accident.
- Immediately upon hearing the sound, Lolita Corso looked out her door and saw her daughter lying seriously injured in the street.
- Vincent Corso, Katherine's father, was also in the kitchen, heard his wife scream, and immediately ran outside to see his injured daughter lying in the street.
- As a result of the accident, Katherine Corso was permanently crippled.
Procedural Posture:
- Vincent and Lolita Corso sued Strella Hilton in a New Hampshire trial court for negligence.
- Counts three and four of the amended writ sought recovery for the parents' own negligent infliction of emotional distress.
- The defendant, Hilton, filed a motion to dismiss counts three and four.
- The trial court granted the motion to dismiss, finding the parents failed to state a cause of action for which relief could be granted under existing law.
- The plaintiffs, the Corsos, excepted to the dismissal, and the trial court transferred the legal question to the Supreme Court of New Hampshire on an interlocutory appeal.
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Issue:
Does a parent have a cause of action for negligent infliction of emotional distress for harm suffered from contemporaneously perceiving a serious injury to their child, even if the parent was outside the physical zone of danger?
Opinions:
Majority - Lampron, C.J.
Yes. A parent has a cause of action for negligent infliction of emotional distress under these circumstances. The court abandons the rigid 'zone of danger' rule previously followed in Jelley v. LaFlame and adopts a traditional negligence analysis based on foreseeability. It is reasonably foreseeable that a parent who witnesses a serious injury to their child will suffer severe emotional distress. To balance the plaintiff's interest in being free from mental distress against the fear of unlimited liability, the court adopts the three-factor foreseeability test from Dillon v. Legg: (1) whether the plaintiff was near the scene of the accident, (2) whether the shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, and (3) whether the plaintiff and victim were closely related. Recovery is further limited to cases where the emotional harm is serious and manifests in objective physical symptoms. In this case, both parents' sensory perceptions—the mother hearing the thud and seeing the child, and the father hearing the scream and immediately seeing the child—were sufficiently contemporaneous to satisfy the test.
Dissenting - Grimes, J.
No. The court should adhere to the zone of danger rule to limit liability. The dissent argues that the majority's decision places a terrible and unreasonable burden on all highway users and creates a 'fantastic realm of infinite liability.' Liability in tort law should be based on culpability, not the seriousness of the injury. The foreseeability test is elastic and lacks a logical stopping point, which will inevitably lead to an expansion of liability to more distant relatives and friends. The 'zone of danger' rule, while not perfectly logical, served the important policy function of creating a clear and necessary barrier to prevent unlimited and burdensome litigation arising from a single negligent act.
Analysis:
This case is significant for abandoning the restrictive 'zone of danger' rule for bystander recovery in New Hampshire and adopting the more flexible, modern foreseeability test from Dillon v. Legg. This decision expanded the scope of duty owed by negligent actors to include closely related bystanders who sensorially perceive a traumatic event, even if they are not in physical danger themselves. By moving from a rule based on physical location to one based on the foreseeability of emotional harm, the court aligned New Hampshire with a growing number of jurisdictions. The holding creates a new precedent that will govern future negligent infliction of emotional distress claims, requiring courts to analyze the plaintiff's proximity, sensory perception, and relationship to the victim, while still limiting recovery to cases involving objective physical manifestations of severe emotional distress.
