Blanche Kallstrom is Todd Palin's mother. She is a real piece of work. Read below:
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Case Law
KALLSTROM v. UNITED STATES
Blanche KALLSTROM, Appellant, v. UNITED STATES of America, Appellee.
No. S-9332.
-- March 15, 2002
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
Kristen D. Pettersen, Mauri Long, and Ray R. Brown, Dillon &
Findley, Anchorage, for Appellant.Kenneth S. Roosa, Assistant United
States Attorney, and Robert C. Bundy, United States Attorney, Anchorage,
for Appellee.
OPINION
I. INTRODUCTION
We accepted certification in this
case to decide whether a Negligent Infliction of Emotional Distress
(NIED) cause of action exists under Alaska law for a plaintiff who
becomes a participant in the infliction of another's injuries through
the negligence of the defendant. Because we think that such an
extension is inadvisable, we hold that an NIED claim is not available to
such an “unwitting instrument.”
II. FACTS1 AND PROCEEDINGS
On
November 27, 1993, Blanche Kallstrom and other members of the public
attended a social function and dance at Jake's Place, an alcohol abuse
transitional care facility in Dillingham. The lights at the facility
had been dimmed for the dance. Non-alcoholic drinks were available to
guests in the kitchen area adjacent to the dance floor. During the
dance, Kallstrom went to the kitchen at the request of her young cousin
to get a drink for nine-year-old Lori Dee Wilson. Kallstrom poured a
drink from a pitcher sitting on the counter which she believed to
contain fruit juice and gave it to Lori Dee. In fact, the pitcher
contained a lye-based caustic detergent that caused severe, permanent
internal injuries to Lori Dee when she drank it.
Kallstrom was not
related to Lori Dee, but was friendly with Lori Dee and her mother and
would see them every two to three months in Kallstrom's store. As a
result of her mistake, Kallstrom claims that she sustained severe shock
and emotional distress that has persisted in the months following the
tragic incident.
Marilyn Wilson, Lori Dee's mother, on her own
behalf and as guardian of Lori Dee, filed a complaint in federal court
against the United States for negligence. Although Kallstrom was not
named as a defendant by Wilson, the government brought a third-party
complaint against her for negligence, seeking an allocation of fault.
Kallstrom then filed a counterclaim against the government for her
injuries allegedly caused by the government's negligence.
The
federal district court granted summary judgment in favor of Lori Dee and
against the government, concluding that it was negligent as a matter of
law to allow an employee or resident of the facility to leave the
caustic detergent in the pitcher near the sink. Wilson then settled her
claim against the government and her claims were dismissed. The
government dismissed its third-party claim against Kallstrom for an
allocation of fault, leaving only Kallstrom's counterclaim against the
government.
Kallstrom next moved for partial summary judgment
against the government on her claim, and the government moved to dismiss
Kallstrom's claim for failure to state a claim for relief for NIED
under Alaska law. The district court granted the government's motion
to dismiss and denied Kallstrom's motion for partial summary judgment.
Kallstrom
then appealed to the Ninth Circuit Court of Appeals. The court of
appeals certified this question to the Alaska Supreme Court pursuant to
Rule 407(a) of the Alaska Rules of Appellate Procedure
2 because, as it noted, the facts of this case are not directly addressed by Alaska case law.
3 Specifically, the court of appeals asks:
Whether
a plaintiff, who has not suffered physical injury, may recover damages
for the negligent infliction of emotional distress when the plaintiff,
without any negligence on her part, becomes the unwitting instrument
through which the defendant, because of its negligence, causes injury to
an innocent victim.[
4 ]
We agreed to accept certification and now answer the question certified to us.
III. STANDARD OF REVIEW
A decision by this court to accept a certified question from another
court under Appellate Rule 407(a) involves determinative questions of
Alaska law for which there is no controlling precedent. Therefore, we
exercise our independent judgment and select the rule of law that is
most persuasive in light of precedent, reason, and policy.
5
IV. DISCUSSION
A. Kallstrom Does Not Have a Claim for Emotional Distress under Established Alaska Law.
There
are two causes of action under current Alaska law that may permit some
unwitting instruments who do not suffer physical injury to recover for
their emotional distress: Negligent Infliction of Emotional Distress
and Intentional Infliction of Emotional Distress. However, neither one
is available in Kallstrom's specific situation.
1. Negligent Infliction of Emotional Distress
Persons in Alaska can recover for the emotional distress that they
suffer under limited circumstances. Generally, damages are not awarded
for NIED in the absence of physical injury.
6
However, there are two established exceptions to that rule in Alaska.
The Ninth Circuit properly found that neither of the two established
exceptions to the requirement of physical injury permits a claim for
NIED by Kallstrom.
7
a. The bystander exception
The first exception to the physical injury requirement involves those
properly characterized as “bystanders” under the three-part test in
Dillon v. Legg.
8
The test, which is used to determine whether the risk of harm to the
plaintiff was reasonably foreseeable, requires that: (1) the plaintiff
is located near the scene of the accident, (2) the shock results from a
direct emotional impact from the sensory and contemporaneous observance
of the accident, and (3) a close relationship exists between plaintiff
and victim.
9
Alaska courts have taken a liberal approach in applying the Dillon factors.
10
In Tommy's Elbow Room, Inc. v. Kavorkian, we considered a NIED claim
by a father who observed his severely injured daughter a few minutes
after she had been hit by a drunk driver. Even though the father did
not contemporaneously observe the accident itself, as required under a
strict reading of the Dillon factors, we held that recovery was still
available.
11
But
we have not yet taken a similarly liberal approach to the third
requirement of a “close relationship.” In Alaska, this relationship
has always involved a blood relationship between plaintiff and victim.
12
Other states that have expanded the “close relationship” requirement
have been very cautious to expand beyond a victim's immediate family, if
they have done so at all.
13
Even if Alaska's liberal interpretation of Dillon applied to the “close
relationship” requirement, it would not encompass Kallstrom. She has
no blood relation to the victim and had only passing involvement with
the victim prior to the night of the injury, so such extension is
unwarranted. Kallstrom cannot recover under the bystander theory.
b. The preexisting duty exception
The second exception to the requirement of physical injury arises when
the defendant owes the plaintiff a preexisting duty, as recognized in
Chizmar v. Mackie.
14
If such preexisting duty exists, then the potential emotional distress
to the particular plaintiff is considered sufficiently foreseeable to
permit recovery. A defendant must stand in either a fiduciary or
contractual relationship with the plaintiff in order to create such a
preexisting duty.
15
The preexisting duty exception does not apply to Kallstrom either, since
the relationship between her and the government was neither contractual
nor fiduciary. Kallstrom could only claim that defendant owed her the
same general duty of care owed to all other members of the public.
Such a duty is not specific enough to meet the requirements of Chizmar.
2. Intentional Infliction of Emotional Distress (IIED)
Another cause of action is available to those who suffer emotional
distress without accompanying physical injury-IIED. This cause of
action differs from NIED in that the plaintiff must show that the
defendant's actions leading to the complained of emotional distress were
intentional, outrageous, or reckless and extreme.
16 It does not appear that Kallstrom has made such a claim in this case.
B. We Decline To Extend a Claim for NIED to Unwitting Instruments.
The Ninth Circuit asks whether we would permit an unwitting instrument
exception to the limitation on claims of NIED in the absence of physical
injury. For the reasons discussed below, we decline to add such an
exception.
1. This issue is not clearly resolved by existing precedent.
The
government contends that we have given sufficient treatment to the
policy considerations surrounding NIED claims and stated the law clearly
in Chizmar and M.A. v. United States.
17
It argues that the two exceptions noted in those cases (bystander,
preexisting duty) were intended to be the only such exceptions available
for claims of NIED unaccompanied by physical injury, so the mere
consideration of an additional exception in this case is excluded by
well-established case law.
There are two reasons why we find that
existing cases are not meant to cover the entire field and preclude
further consideration. First, the government's argument relies on an
absolute reading of the specific language of Chizmar, which the
government reads as limiting recovery for NIED without physical injury
only to those owed a preexisting duty. However, our decision in that
case later recognizes that the requirement of a preexisting duty is not
absolute: “Our holding today does not modify the requirements for
‘bystander’ recovery.”
18
Second,
the government's reading of Chizmar and M.A. is inconsistent with
decisions subsequent to those cases. In two other cases, Hawks v.
State, Department of Public Safety
19 and Karen L. v. State, Department of Health & Social Services,
20
we considered whether new factual situations merited imposition of a
duty under NIED despite the fact that there was no preexisting duty
between the parties. The government's own brief acknowledges that
Chizmar has not rendered policy analysis irrelevant in new NIED cases,
but only that it is of “limited applicability.”
Although
additional exceptions to the prohibition of claims for NIED in the
absence of physical injury will not be easily established, we clarify
that our decisions in Chizmar and M.A. do not completely preclude
consideration of such extensions in the future.
2. Plaintiffs in
the “participant” or “unwitting instrument” scenario vary so widely that
we decline to recognize an exception for them.
The bystander and
preexisting duty exceptions permit recovery for NIED in the absence of
physical injury because they “represent isolated situations where courts
have found that the special circumstances surrounding a claim for
emotional damages serve as a sufficient guarantee that the claim is
neither false nor insubstantial.”
21
We do not think that such certainty arises in the case of an unwitting
instrument. Factual circumstances creating the participant or
unwitting instrument scenario can vary so widely that such a
characterization adds very little to the claim.
When deciding whether a novel action for negligence can be maintained under the common law, we consider whether a duty exists.
22
“ ‘Duty’ is not sacrosanct in itself, but is only an expression of the
sum total of those considerations of policy which lead the law to say
that the particular plaintiff is entitled to protection.”
23 We apply the factors recognized in D.S.W. v. Fairbanks North Star School District
24
to determine whether an actionable duty of care exists when the facts
under consideration are not covered by statute, regulation, contract, or
case law.
25
In
the present case, Kallstrom proposes that we recognize a duty of due
care to protect “unwitting instruments” from emotional harm. But such a
duty would run afoul of D.S.W.'s first and most important factor,
foreseeability of harm to the plaintiff.
We can imagine a
potentially endless variety of factual circumstances that may give rise
to an unwitting instrument claim: the friend who mails a defective toy
to a child who later chokes on a small part of the toy, the owner who
lends his car to a friend unaware that the car has faulty brakes, the
cook whose customers develop a disease ten years after he served them
food containing a carcinogenic preservative, and the driver who sues
parents for negligent supervision after hitting a child who chases a
ball into the street. Although all might be labeled “unwitting
instruments,” these scenarios vary widely with regard to the relevant
considerations of duty, including foreseeability, certainty of injury,
and ability to prevent future harm.
The cases cited by both
parties also offer a variety of factual circumstances and legal outcomes
that confirm our conclusion that unwitting instruments are a diverse
group. In Kately v. Wilkinson,
26
a mother was allowed compensation for her claims of emotional distress
resulting from witnessing the death of her daughter's friend as she
waterskied behind the defective boat that the mother was driving.
Similarly, in Althoff v. Consolidated Rail Corp.,
27
the court permitted a claim of emotional distress by the operator of a
defective crane that dropped a wood timber and killed a bystander.
However, in Straub v. Fisher & Paykel Health Care,
28
the court denied a respiratory therapist's claims of emotional distress
after witnessing a defective ventilator kill a patient. Other cases
that we have found show a similar variance.
29
The
parties attempt to distinguish cases reaching opposing outcomes by
claiming that they are based on alternate legal causes (product
liability or employer's liability) or that related aspects of the ruling
state's common law differs in some significant way. Regardless, these
divergent opinions make clear that it cannot be said with regard to the
unwitting instrument, as Professor Prosser has said with regard to the
bystander exception, that “[a]ll ordinary human feelings are in favor of
[an] action against the negligent defendant.”
30
Viewing
these cases as a class of “unwitting instrument” situations, we find
that the relationship between the plaintiff and the victim, the nature
of the participant's involvement, and the uncertain mix of potential
emotions, including guilt, shock or indifference, fall well short of
creating the same “compelling proposition” that led the court in Dillon
to allow recovery for a mother who witnesses the infliction of death or
injury to her child.
31
In
particular, an unwitting instrument might be expected to feel very
different depending on the nature of the person's instrumentality. For
example, one instrument may be the exclusive cause of injury while
another may be only a contributing or partial cause. Even more
important is the type of action giving rise to an unwitting instrument;
one unwitting instrument may exercise discretion or choice of action in
the role as instrument while another's involvement may be completely
involuntary and unthinking. Each difference will contribute in
important ways to the plaintiff's feelings of guilt and will control the
emotional distress.
Our existing exceptions to the NIED rule's
requirement of physical injury define combinations of factors that we
consider to be useful and reliable in identifying claims involving
foreseeable danger of serious emotional harm-factors such as physical or
temporal proximity of the plaintiff to the infliction of the victim's
injury and the relationship between the participant and the victim.
But we do not think that the broad range of situations encompassed by
the term “unwitting instrument” would be useful in the same way.
Kallstrom's
case is compelling because she comes close to so many of the relevant
factors for establishing NIED in the absence of physical injury.
However, she fails to plead an existing cause of action because her
personal relationship to Lori Dee is not close enough and the government
owed her no preexisting duty. Yet even assuming that the other
requirements of the bystander exception remained, we would decline to
accept unwitting instrument status-that is, mere innocent presence in
the causal chain-as a substitute for the existing requirement of close
personal relationship. Such a factor is so variable that it does not
meaningfully distinguish between claims that should be allowed and those
that should not.
V. CONCLUSION
We hold that a claim of NIED
in the absence of physical injury is not available to a plaintiff
solely because she or he is made the unwitting instrument of death or
serious injury to another through the negligence of the defendant.