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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kallstrom v. U.S. (03/15/2002) sp-5553

Kallstrom v. U.S. (03/15/2002) sp-5553

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.


            THE SUPREME COURT OF THE STATE OF ALASKA


BLANCHE KALLSTROM,                 )
                              )    Supreme Court No. S-9332
             Appellant,                 )
                              )     Ninth  Cir. Ct. App. No.  98-
35362
     v.                                           )    U.S. Dist.
                              Ct. No. CV-94-488 HRH
                              )
UNITED STATES OF AMERICA,     )    O P I N I O N
                              )
             Appellee.                   )     [No. 5553 -  March
                              15, 2002]
________________________________)


          Appellate  Rule 407 Certified  Question  from
          the Ninth Circuit Court of Appeals, on Appeal
          from the United States District Court for the
          District   of  Alaska,  H.  Russel   Holland,
          District Judge.

          Appearances:  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.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


I.   INTRODUCTION

          I.    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 anothers 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

Jakes  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 Kallstroms 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 Dees 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

governments 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 Kallstroms counterclaim against

the government.

          Kallstrom  next  moved  for  partial  summary  judgment

against the government on her claim, and the government moved  to

dismiss Kallstroms claim for failure to state a claim for  relief

for  NIED  under  Alaska  law.  The district  court  granted  the

governments  motion to dismiss and denied Kallstroms  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 Procedure2 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 Kallstroms 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

          a.   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 Tommys 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 victims immediate family, if they have done so at

all.13

          Even   if  Alaskas  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 defendants 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 governments 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 governments reading of Chizmar and M.A.  is

inconsistent  with decisions subsequent to those cases.   In  two

other  cases,  Hawks v. State, Department of Public Safety19  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 governments 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 deline 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 District24  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  daughters 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

therapists  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 employers liability) or  that

related  aspects of the ruling states 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 participants 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

persons 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 anothers involvement may be completely

involuntary  and unthinking.  Each difference will contribute  in

important  ways  to  the plaintiffs feelings of  guilt  and  will

control the emotional distress.

          Our  existing exceptions to the NIED rules  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 victims 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.

          Kallstroms  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.
_______________________________
     1     Because  the  federal court has presented  us  with  a
generalized  certified question and because our deliberations  as
to   novel  causes  of  action  focus  on  legal  duties  between
individuals rather than particular conduct, see Bolieu v. Sisters
of  Providence  in  Wash., 953 P.2d 1233, 1235-36  (Alaska  1998)
(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts   53, at 356 (5th ed. 1984)), the immediate facts  of  this
case are relevant only to the extent that they provide background
information and illustration of the legal issue to be decided.

     2    Rule 407(a) provides:

               The supreme court may answer questions of law
               certified to it by the Supreme Court  of  the
               United  States,  a court of  appeals  of  the
               United   States,  a  United  States  district
               court,  a  United States bankruptcy court  or
               United  States  bankruptcy  appellate  panel,
               when  requested  by the certifying  court  if
               there  are involved in any proceeding  before
               it  questions of law of this state which  may
               be determinative of the cause then pending in
               the  certifying  court and  as  to  which  it
               appears to the certifying court there  is  no
               controlling precedent in the decisions of the
               supreme court of this state.
               
     3    Wilson v. United States, 190 F.3d 959, 962-63 (9th Cir.
1999).

     4    Id. at 960.

     5    M.A. v. United States, 951 P.2d 851, 853 (Alaska 1998);
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     6    Hancock v. Northcutt, 808 P.2d 251, 257 (Alaska 1991).

     7    Wilson, 190 F.3d at 962.

     8     441  P.2d 912, 920 (Cal. 1968).  See also Tommys Elbow
Room,  Inc.  v. Kavorkian, 727 P.2d 1038 (Alaska 1986)  (adopting
Dillon).

     9    Dillon, 441 P.2d at 920.

     10    Kavorkian, 727 P.2d at 1042-43.

     11    Id.

     12    Wilson, 190 F.3d at 962 (citations omitted).

     13     Compare  Leong v. Takasaki, 520 P.2d 758,  766  (Haw.
1974)  (extending  claim  to plaintiff  who  observed  injury  to
stepgrandmother);  Dunphy v. Gregor, 642 A.2d 372,  376-77  (N.J.
1994) (extending claim to cohabitants of over two years who  were
engaged  but not married); with Elden v. Sheldon, 758  P.2d  582,
588   (Cal.   1988)  (refusing  to  extend  claim  to   unmarried
cohabitants); Blanyar v. Pagnotti Enterprises, Inc., 679 A.2d 790
(Pa.  Super.  1996)  (refusing to  extend  claim  to  very  close
cousin).

     14    896 P.2d 196, 203 (Alaska 1995).

     15    Id.

     16    Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 133 (Alaska
2000);  Wal-Mart,  Inc.  v. Stewart, 990 P.2d  626,  635  (Alaska
1999).

     17    951 P.2d 851 (Alaska 1998).

     18    Chizmar, 896 P.2d at 204.

     19    908 P.2d 1013 (Alaska 1995).

     20    953 P.2d 871 (Alaska 1998).

     21     Chizmar, 896 P.2d at 202 (quoting W. Page Keeton,  et
al., Prosser and Keeton on the Law of Torts  53, at 356 (5th  ed.
1984)).

     22     See Stephens v. State, Dept of Revenue, 746 P.2d 908,
910 (Alaska 1987).

     23     Mesiar  v.  Heckman, 964 P.2d 445, 448 (Alaska  1998)
(citations omitted).

     24     628  P.2d 554, 555 (Alaska 1981).  The D.S.W. factors
include the following:
          (1)  the foreseeability of harm to the plaintiff;
          (2)  the  degree  of certainty that the  plaintiff
               suffered an injury;
          (3)  the  closeness of the connection between  the
               defendants conduct and the plaintiffs injury;
          (4)  the  moral  blame attached to the  defendants
               conduct;
          (5)  the policy of preventing further harm;
          (6)  the extent of the burden to the defendant and
               consequences to the community of  imposing  a
               duty of care; and
          (7)  the  availability,  cost, and  prevalence  of
               insurance for the risk involved.
               
     25     See  Karen L. v. State, Dept of Health & Soc. Servs.,
953  P.2d 871, 875 n.9 (Alaska 1998); M.A. v. United States,  951
P.2d 851 (Alaska 1998).

     26    195 Cal. Rptr. 902 (Cal. App. 1984).

     27    1988 WL 61734 (E.D. Pa. 1988).

     28    990 P.2d 384 (Utah 1999).

     29     Compare Crippens v. Sav On Drug Stores, 961 P.2d  761
(Nev.  1998)  (permitting  claim  by  daughter  who  administered
negligently  dispensed  drugs  to her  mother),  with  Slaton  v.
Vansickle,  872  P.2d 929 (Okla. 1994) (rejecting  claim  by  gun
owner  whose  gun misfired while he was cleaning  it  and  killed
young girl).

     30     W. Page Keeton, et al., Prosser and Keeton on the Law
of Torts  54, at 366 (5th ed. 1984).

     31    Dillon, 441 P.2d at 914.