|||Hawaii Supreme Court
|||632 P.2d 1066, 63 Haw. 557, 1981.HI.40083 <http://www.versuslaw.com>
|||August 26, 1981
|||PAMELA CAMPBELL, CRAIG CAMPBELL, TAMRA CAMPBELL, AND KELLY CAMPBELL, MINORS,
BY AND THROUGH THEIR GUARDIAN AD LITEM, REX CAMPBELL, REX CAMPBELL, INDIVIDUALLY,
AND FAYE CAMPBELL, PLAINTIFFS-APPELLEES,
ANIMAL QUARANTINE STATION, DIVISION OF ANIMAL INDUSTRY, DEPARTMENT OF AGRICULTURE, STATE OF HAWAII, BOARD OF AGRICULTURE, DEFENDANTS-APPELLANTS, AND JOHN DOES 1 THROUGH 25, DEFENDANTS
|||Appeal From First Circuit Court; Honorable Hiroshi Kato, Judge; Civil
|||Dudley Akama, (Everett Cuskaden on the briefs), Deputy Attorneys General,
|||Dennis W. Potts for plaintiffs-appellees.
|||Richardson, C.J., Ogata, Menor, Lum, Nakamura, JJ. Opinion of the Court
by Lum, J.
[63 Haw Page 558]
|||This is an appeal by defendant-appellant Animal Quarantine Station of
the State of Hawaii from a circuit court order awarding a total of $1,000.00
to plaintiffs-appellees Mr. and Mrs. Rex Campbell and three of their four
children for emotional distress suffered when the plaintiffs' dog (Princess)
died in the Animal Quarantine Station. The trial court found the State liable
because of its negligence in transporting Princess to a private veterinarian
hospital. Although it awarded damages to plaintiffs for the loss of the
dog, only the award of damages for emotional distress is at issue in this
appeal. We affirm.
|||Princess, a nine-year-old female boxer, arrived in Hawaii by air on June
6, 1975 and was transported to the Animal Quarantine Station. Princess had
been owned by the plaintiffs since she was a few weeks old and had lived
with the family continuously before they came to Hawaii.
|||Princess was given a medical examination the following day and was found
to be in good health with the exception of a growth on her gums, which did
not require emergency treatment. After the Animal Quarantine Station notified
Mr. Campbell of the growth, he arranged to have Dr. Choy of the nearby Kapalama
Pet Hospital remove it.
|||Two days later, Princess was one of seven animals loaded by quarantine
station personnel into a van for transportation to the Kapalama Pet Hospital.
It was a hot afternoon, and the van was exposed directly to the sun. There
were no ventilation devices in the section of the van where the animals
waited. Princess was in the hot van for at least an hour. She died of heat
prostration 15 to 20 minutes after arrival at the Kapalama Pet Hospital.
|||None of the plaintiffs saw the dog die, nor did any of them see the deceased
body of Princess. Plaintiffs heard the news of Princess' death by phone
on the morning of June 10, 1975 from Dr. Choy. Upon hearing the news, all
cried except the father. The trial court found that the entire family was
preoccupied with Princess' death for two to three weeks after hearing the
news, suffering serious
[63 Haw Page 559]
emotional distress. None of the plaintiffs sought psychiatric or medical
assistance as a result of the emotional distress which they suffered.
|||The award, totalling $1,000.00, was in varying amounts to five of the
six plaintiffs for their serious emotional distress.*fn1
|||The State appeals three issues to this court:
|||(1) Whether plaintiffs must witness the tortious event in order to recover
damages for serious mental distress;
|||(2) Whether medical proof or expert testimony is required to substantiate
plaintiffs' claim of serious mental distress; and
|||(3) Whether the case at bar is controlled by the holding in Rodrigues
52 Haw. 156,
472 P.2d 509
(1970), allowing recovery for serious mental distress resulting from the
negligent destruction of plaintiffs' property.
|||Our holdings in Rodrigues v. State, supra, Leong v. Takasaki,
55 Haw. 398,
520 P.2d 758
(1974), and Kelley v. Kokua Sales and Supply, Inc.,
56 Haw. 204,
532 P.2d 673
(1975), established the law of this State in the area of recovery for mental
distress. We find that these cases, in particular Rodrigues and Leong, are
dispositive as to the facts in the case at bar. However, before applying
this law to the facts, we find it useful to review the development of Hawaii's
approach to the law in this area.*fn2
|||In Rodrigues v. State, supra, we permitted recovery in tort for mental
distress due to the State's negligence in causing damages to plaintiffs'
house. We recognized that an individual's interest in freedom from negligent
infliction of serious mental distress is entitled to
[63 Haw Page 560]
independent legal protection. Id. at 174,
472 P.2d at 520.
In making such recognition, we did not distinguish between mental distress
suffered as a consequence of witnessing injury to another and that resulting
from the destruction of one's own property. Rodrigues departed from the
traditional standard and held that serious mental harm can be inflicted
when a person endures negligently inflicted property damage.
|||We circumscribed such liability to serious mental distress and held that
serious mental distress may be found where a reasonable person, normally
constituted, would be unable to adequately cope with the mental stress engendered
by the circumstances of the case. We held that the question of whether defendant
is liable in any particular case will be solved by the application of general
tort principles, but we also held that defendant's obligation to refrain
from particular conduct is only to those who are foreseeably endangered
by the conduct and only with respect to those risks or hazards whose likelihood
made the conduct unreasonably dangerous. Id. at 174,
472 P.2d at 521.
|||Significantly, Rodrigues did not require any threshold showing of physical
effects resulting from the distress. Thus, we became the first jurisdiction
to allow recovery without a showing of physically manifested harm.*fn3
|||In Leong v. Takasaki, supra, this court further refined this new cause
of action. In Leong the minor plaintiff was crossing the highway with his
hanai-grandmother. He noticed an approaching car and stopped, but the grandmother
did not. The car struck and killed her. The plaintiff suffered psychic injuries,
including shock, but no physical harm.
|||The trial court dismissed the action on the ground that there could be
no recovery for mental distress without resulting physical injury. We reversed
the trial court and affirmed our previous holding in Rodrigues that mental
distress did not have to manifest itself physically. We employed Rodrigues
' "reasonable man" standard for
[63 Haw Page 561]
determining the extent of the duty owed to the plaintiff and the issue of
proximate causation. We explained that:
|||[W]hen it is reasonably foreseeable that a reasonable plaintiff-witness
to an accident would not be able to cope with the mental stress engendered
by such circumstances, the trial court should conclude that defendant's
conduct is the proximate cause of plaintiff's injury and impose liability
on the defendant for any damages arising from the consequences of his negligent
|||Id. at 410,
520 P.2d at 765.
|||In Kelley v. Kokua Sales and Supply, Inc., supra, a father in California
died as a result of receiving news by phone of the death of his daughter
and grandchild in a highway accident which occurred in Hawaii. The crucial
question in that case was whether a duty was owed to the father. We held
that there was no duty owed to the father as the consequences could not
be reasonably foreseen, and clearly, the father's location was too remote
from the scene of the accident.
|||We turn now to the issues presented by the case at bar.
|||Defendant argues that it did not owe a duty of care to plaintiffs because
the plaintiffs were neither eyewitnesses to their dog's death nor located
within a reasonable distance of the accident; that it was therefore not
foreseeable that severe emotional distress would be incurred by plaintiffs.
|||Defendant attempts to distinguish this case from Rodrigues and Leong because
the plaintiffs did not witness this tortious event, arguing that this case
is instead similar to Kelley. Defendant reads Rodrigues and Leong to require
that the plaintiffs must actually witness the accident in order to recover.
|||In Kelley we were concerned with formulating a reasonable and proper limitation
of the scope of the duty of care because of the potential for unmanageable
and unpredictable liability. We therefore imposed a geographical limitation
restricting recovery to those located within a reasonable distance from
the scene of the tortious event. Our holding in that case was based upon
policy considerations. Kelley's geographical consideration is not present
[63 Haw Page 562]
facts of this case since plaintiffs and their dog were located within Honolulu.
|||Rather, we find that the facts of this case are similar to those in Rodrigues,
a case where the plaintiffs witnessed the consequences but not the accident
and were not located any further from the scene of the accident than were
the plaintiffs in the current case.
|||Defendant also urges this court to apply the factors enunciated in Dillon
v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), and D'Ambra
v. United States, 354 F.Supp. 810 (D.R.I. 1973), modified on other grounds,
481 F.2d 14 (1st Cir. 1973).*fn4 However,
in both Rodrigues and Leong, we held that the factors formulated in Dillon
and D'Ambra should be utilized to determine the genuineness and degree of
mental distress, rather than to bar recovery. Rodrigues set out the two
considerations for recovery: one's interest in freedom from negligent infliction
of foreseeable serious mental distress, and the standard of proof to be
used by the trier of fact in ascertaining whether the emotional distress
was genuine and serious. Thus, we did not indicate in Rodrigues, the only
case dealing specifically with damage to property, a requirement that the
tortious event be witnessed by the plaintiffs.
|||Defendant's next major contention is that the trial court erred in ruling
that medical testimony was not necessary to substantiate plaintiffs' claims
of serious emotional distress. No medical testimony was presented in the
lower court. The testimony consisted of testimony by the plaintiffs relating
to the background of their relationship with Princess, the role Princess
played in their daily routine, and their respective feelings and the type
of loss which each felt upon hearing the news of the dog's sudden death.
|||In Rodrigues v. State, supra, plaintiffs were awarded damages for mental
anguish they suffered due to the flooding of their newly built home. No
medical testimony was presented and the proof of their
[63 Haw Page 563]
distress was limited to testimony by the plaintiffs regarding the effect
which the sight of their devasted home had on them. In Rodrigues, as in
the instant case, the proof of the mental distress was not of a medically
significant nature. This court vested the trial court with the discretionary
power to judge the genuineness of a claim:
|||We believe these reasons [to limit recovery to claims involving serious
emotional distress and not to include distress of a trivial nature] are
to be considered by the jury and the court with the particular facts of
each case in applying the "reasonable man" standard . . . and
are not legal limitations on the right to recover.
|||Id. at 173,
472 P.2d at 520.
|||In Dold v. Outrigger Hotel,
54 Haw. 18,
501 P.2d 368
(1972), we affirmed our holding that judgment of the genuineness and seriousness
of a claim of mental distress resides with the trier of fact. Dold involved
a lawsuit for breach of contract where the defendant had engaged in intentional
overbooking and had thereby forced the plaintiffs to move to another hotel
despite their having made advance reservations. In Dold, as in Rodrigues,
this court was faced with a situation where the proof of mental distress
was not of a medically significant nature. The trial court in Dold gave
the following jury instruction:
|||Plaintiffs have a right to recover all damages which they have suffered
and which the defendants or a reasonable person in the defendants' position
should have foreseen would result from their acts or omissions. Such damages
may include reasonable compensation for emotional distress and disappointment,
if any . . . . There is no precise standard by which to place a monetary
value on emotional distress and disappointment, nor is the opinion of any
witness required to fix a reasonable amount. In making an award of damages
for emotional distress and disappointment, you should determine an amount
which your own experience and reason indicates would be sufficient in light
of all of the evidence.
|||Id. at 21,
501 P.2d at 371
|||This court affirmed the trial court's decision to give this instruction,
stating that "the jury was properly instructed on the issue of damages
for emotional distress and disappointment." Id. at 22-23,
501 P.2d at 372.
[63 Haw Page 564]
In Leong v. Takasaki, supra, we differentiated between primary and secondary
responses to a traumatic event. Primary responses were defined as the immediate,
automatic and instinctive responses to such an event; secondary responses
were those resulting in actual physical injury to the body in the absence
of physical impact. Clearly, no secondary responses were present in the
|||In discussing primary responses, we acknowledged that they are short in
duration and transient in nature, although they may result in painful and
serious mental suffering. We stated that the precise level of mental suffering
resulting from primary responses is difficult to measure with accuracy because
the medical expert must rely exclusively on the statements made by the victim.
This discussion of primary and secondary responses was not directly related
to the issues in Leong (there was no indication that the plaintiff had ever
consulted a doctor or psychiatrist for treatment of his alleged emotional
distress), yet we concluded that the final decision must rest with the trial
|||Whether the degree of stress engendered by the circumstances of this case
is beyond the amount of stress with which a reasonable man can be expected
to cope is a question for trial court.
|||Id. at 410,
520 P.2d at 766.
|||Rather than making medical testimony a prerequisite for recovery for emotional
distress, it, like the factors enunciated in Dillon and D'Ambra, should
be used as indicators of the degree of the mental distress, not as a bar
to recovery. The precautionary requirement imposed by Rodrigues to ensure
the genuineness of emotional distress claims is that some showing be made
that the distress suffered is "serious." Medical proof can be
offered to assist in proving the "seriousness" of the claim and
the extent of recovery, but should not be a requirement allowing or barring
the cause of action. Once the trial court or the jury is satisfied that
the distress is "serious," the duration and symptoms of the distress
affect the amount of recovery.
|||In the instant case the trial court correctly ruled that medical testimony
was not necessary to substantiate plaintiffs' claims of serious emotional
distress. By limiting the total award among five people to $1,000.00, the
trial court indicated its awareness of the limited duration and severity
of the distress suffered by the plaintiffs.
[63 Haw Page 565]
|||Defendant's third contention is that damages for injured feelings and
mental distress suffered by loss of personal property*fn5
are not proper items of recovery. Defendant relies on case law throughout
the United States to support its argument, stating that to allow this kind
of recovery "would lead to a plethora of similar cases, many which
would stretch the imagination and strain all bounds of credibility."
|||Hawaii has devised a unique approach to the area of recovery for mental
distress. Rodrigues v. State, supra, decided by this court more than ten
years ago, allowed recovery for mental distress suffered as the result of
the negligent destruction of property. Since our holding in Rodrigues, there
has been no "plethora of similar cases"; the fears of unlimited
liability have not proved true. Rather, other states have begun to allow
damages for mental distress suffered under similar circumstances.*fn6
|||Accordingly, we affirm the decision of the circuit court. We find that
the court correctly applied the standards of law enunciated in our previous
holdings in this area, and the issues of whether the damages were proximately
caused by the defendant and have resulted in serious emotional distress
to the plaintiffs are therefore within the discretion of the trier of fact.
|||*fn1 The trial court found that all
of the plaintiffs, with the exception of Kelly Campbell, sustained serious
|||*fn2 The history and development of
the law of recovery for mental distress throughout the country is discussed
in Leong v. Takasaki, supra.
|||*fn3 The physical injury requirement
has lately been eliminated in other jurisdictions. The California Supreme
Court recently joined this trend and dispensed with the physical injury
requirement for claims founded on mental distress. Molien v. Kaiser Foundation
Hospitals, 27 Cal.3d 916, 616 P.2d 813, 167 Cal.Rptr. 831 (1980).
|||*fn4 The guidelines for determining
liability developed in Dillon and D'Ambra, supra, are discussed in detail
in Leong v. Takasaki, supra, at 408-9,
520 P.2d at 765.
These criteria have been used in California and Rhode Island as determinants
of liability when applied to the particular factual situations presented
to the courts.
|||*fn5 The law clearly views a dog as
personal property. Thiele v. City and County of Denver, 135 Colo. 442, 312
P.2d 786 (1957); Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955).
|||*fn6 See Knowles Animal Hospital, Inc.
v. Wills, 360 So.2d 37 (Dist. Ct. App. 1978). Knowles concerned an action
by the owners of a dog against a veterinarian and animal hospital for the
negligent burning of the dog with a heating pad following an operation.
The District Court of Appeal of Florida held that the jury properly considered
the plaintiffs' mental suffering in determining the award. The court ruled
that the jury viewed the "neglectful conduct which resulted in the
burn injury suffered by the dog to have been of a character amounting to
great indifference to the property of the plaintiffs, such as to justify
the jury award." Id. at 38-39.
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