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Schack v. Schack (3/23/2018) sp-7230

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

RACHEL  E.  SCHACK  and  DYLAN  E.                               )  

SCHACK,                                                          )     Supreme  Court  No.  S-16438  



                              Appellants,                        )     Superior Court No. 4FA-14-00718 PR  



                                                                 )     O P I N I O N  



STEVEN M. SCHACK, Personal                                                                                 

                                                                 )     No. 7230 - March 23, 2018  


Representative of the Estate of                                  )  


ELIZABETH I. SCHACK,                                             )  


                              Appellee.                          )  



                       ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                    Fourth Judicial District, Fairbanks, Matthew C. Christian,  


                    Judge pro tem.  


                    Appearances:             Ward  Merdes,  Merdes  Law  Office,  P.C.,  


                    Fairbanks,  for  Appellants.                  Cheryl  L.  Graves,  Farley  &  


                    Graves, P.C., Anchorage, for Appellee.  


                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                    and Carney, Justices.  


                    BOLGER, Justice.  



                    A family rushed to the scene of a car accident, only to discover that it had  


been caused by a family member, who soon died from her traumatic injuries. The family  

----------------------- Page 2-----------------------

 brought a bystander claim against the deceased family member's estate for negligent                                                                                                                                                                                                                                                                      

 infliction of emotional distress, making the novel argument that, even though the family                                                                                                                                                                                                                                                                               

 member was also the tortfeasor, the family could recover for its resulting emotional                                                                                                                                                                                                                                                                  

 distress. The superior court granted summary judgment in favor of the estate, reasoning                                                                                                                                                                                                                                                                 

 that the family's claim has no basis in current Alaska law. We                                                                                                                                                                                                                 affirm the superior court's  

 grant of summary judgment because the family's claim has no basis in current Alaska                                                                                                                                                                                                                                                                                 

 law and fails to satisfy our test for expanding tort liability.                                                                                                                                                                

 II.                           FACTS AND PROCEEDINGS                                             

                                                             The parties stipulated to the following facts for the purposes of summary                                                                                                                             

judgment, and, in this appeal, we assume they are true.                                                                                                                                                                                               In June 2014, Elizabeth Schack                                                                                

 was   driving   and   failed  to  yield  the   right-of-way   at   a   stop   sign.     The   driver   of   an  

 oncoming truck was unable to stop and collided with the driver's side of Elizabeth's car.                                                                                                                                                                                                                                                                                                               

 Elizabeth's mother and brother, Rachel and Dylan Schack, at home around the corner,                                                                                                                                                                                                                                                                                 

 heard the impact and rushed to the scene, where they saw Elizabeth seriously injured as                                                                                                                                                                                                                                                                                                   

 a result of the crash.                                                                     As the Schacks watched, Elizabeth was extracted from the vehicle                                                                                                                                                                                                        

 by emergency responders; she died as a result of her injuries.                                                                                                                                                                                                                       

                                                             In February 2015, the Schacks filed a notice of negligent infliction of                                                                                                                                                                                                                                                      

                                                                                                                                                       1  against Elizabeth's estate2  (the Estate).  The notice  

 emotional distress (NIED) claim                                                                                                                                                                                                                                                                                                                                        

                               1                             Under AS 13.16.465 a claim against a decedent's estate must be presented                                                                                                                                                                                                                     

 as a written statement providing the basis of the claim and other information rather than                                                                                                                                                                                                                                                                                       

 as a complaint.                                                       

                               2                             The parties dispute whether Elizabeth's insurance company is also a party  


 to this suit.  However, the presence of insurance has no bearing on the legal question  


 whether an NIED claim can proceed when the tortfeasor and the victim are the same  


 person, so we do not address this issue further.   See Severson v. Estate of Severson,  


 627 P.2d 649, 651 (Alaska 1981) (noting that Alaska law does not permit direct actions  


 against an alleged tortfeasor's liability insurer).  


                                                                                                                                                                                             -2-                                                                                                                                                                               7230

----------------------- Page 3-----------------------

asserted the Estate was liable for the emotional distress that the Schacks experienced as                                                                                                            

a result of Elizabeth's negligent conduct.                                                      Each family member sought as compensation                                 

the liability                 limit of Elizabeth's auto                                    insurance policy                          and the liability                        limit of the        

Estate's personal representative's auto insurance policy.                                                                              The Estate filed a notice of                                  


disallowance of the NIED claim on the basis that it was of questionable legal validity.                                                                                                                     

                               The Schacks then petitioned for allowance of the NIED claim, and the  


Estate moved for summary judgment.  The Estate contended that the NIED claim failed  


as  a  matter  of  law  because  Alaska's  bystander  theory  of  liability  does  not  permit  


recovery when the tortfeasor and the injured relative are the same person.  The Schacks  


opposed the motion and cross-moved to establish NIED liability by the Estate as a matter  


of law.   They argued that no case law dictated that Elizabeth's dual role precluded  


recovery under an NIED claim.   In August 2016, after hearing argument from both  


parties, the superior court granted the Estate's motion for summary judgment and denied  


the Schacks' cross-motion, reasoning that the NIED claim has no basis in current Alaska  


law.  The Schacks appeal.  




                               "Wereviewgrants ofsummary judgment denovo,determining whether the  


record presents any genuine issues of material fact."4                                                                            "If the record fails to reveal a  


genuine factual dispute and the moving party was entitled to judgment as a matter of law,  


the trial court's grant of summary judgment must be affirmed."5                                                                                           "A resolution of the  


question of whether a plaintiff can assert a claim for NIED is essentially an inquiry into  


                3              Under AS 13.16.475(a), a personal representative of an estate can respond                                                                                

to a notice of a claim against the estate by disallowing it.                                                                    

                4              Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014).  


                5              Id.  

                                                                                                  -3-                                                                                         7230

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whether the defendant should reasonably foresee the injury to the plaintiff and thus owes                                                    


the plaintiff a duty of care."                                                                                                                    

                                                  The scope and existence of a duty of care are questions of  



law, which we review de novo. 


                       Alaska  law  permits  individuals  to  recover  damages  on  the  basis  of  


emotional distress under limited circumstances.8                                       As a general rule, damages are not  


awarded in the absence of a physical injury.9  We have established two exceptions to this  


general rule:  (1) the bystander exception and (2) the preexisting duty exception.10                                                          We  


consider  the  applicability  of  each  exception  to  the  Schacks'  NIED claim;  we  then  


consider whether this case warrants establishing a new theory of NIED liability.  We  


conclude  that  neither  exception  applies,  and  an  expansion  of  NIED  liability  is  not  



           A.          The BystanderExceptionDoes Not ApplyUnderExisting Alaska Law.  


                       The bystander exception allows certain bystanders to recover damages for  


emotional distress caused by witnessing physical injury toanother.11  Wefirst recognized  


           6           Beck   v.   State,   Dep't  of   Transp.   &   Pub.   Facilities,   837   P.2d   105,   109  

(Alaska   1992).   

           7           Sowinski  v.   Walker,   198  P.3d   1134,   1145  (Alaska  2008).  

           8           Kallstrom v. United States, 43 P.3d 162, 165 (Alaska 2002).  


           9           Id.  

            10         Id.  at   165-66.   

            11         Tommy's  Elbow  Room,  Inc.  v.  Kavorkian,  727  P.2d   1038,   1043  (Alaska  


                                                                        -4-                                                                 7230

----------------------- Page 5-----------------------


the bystander exception in                     Tommy's Elbow Room, Inc. v. Kavorkian.                                      In doing so, we       


adopted the reasoning of the California Supreme Court in                                             Dillon v. Legg           ,                

                                                                                                                                  which held  


that proof of the following elements establishes a prima facie case of bystander liability:  


(1) the plaintiff was "near the scene of the accident"; (2) the plaintiff's shock resulted  


"from the sensory and contemporaneous observance of the accident"; and (3) a close  

                                                                                                                  14  In Tommy's Elbow  


relationship existed between theplaintiffand theinjured individual. 

Room we relaxed the second element to require only that it be reasonably foreseeable  


that the plaintiff would suffer emotional harm as a result of the accident, rather than  


requiring that the plaintiff contemporaneously observed the accident.15  


                       The Schacks' NIED claim presents the novel question whether recovery is  


permitted when the injured relative and the tortfeasor are the same person. Neither party  


cites a case, from this court or any other jurisdiction, that has directly addressed this  


precise question.   The parties have stipulated that the Schacks otherwise satisfy the  


elements of NIED under Alaska law:   they were near the scene of the accident and  


rushed to it, where they were shocked to witness Elizabeth, their daughter and sister,  


severely wounded and fighting for her life.  


                       The California Supreme Court's opinion in Dillon  (whose reasoning we  


adopted in Tommy's Elbow Room) contains language suggesting that recovery on an  


NIED claim is not permitted when the plaintiff's injured relative causes the accident. In  


Dillon, a mother and daughter who witnessed a car strike and kill their infant daughter  


            12         Id.  

            13         441 P.2d 912 (Cal. 1968);                      see Tommy's Elbow Room, Inc.                             , 727 P.2d at       


            14         Dillon, 441 P.2d at 920.  


            15         727 P.2d at 1043.  


                                                                        -5-                                                                  7230

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and sister sued the car's driver.                              The  Dillon  court held that the mother and daughter had                                          

alleged a prima facie NIED claim because the driver could have reasonably foreseen that                                                                          

                                                                                                17   However, the court also noted that  

his conduct would cause them emotional distress.                                                                                                                 

the driver had raised a defense of contributory negligence by the plaintiffs and the victim  


infant.18          It explained that if, on remand, this defense was sustained and the driver  


ultimately found not liable by virtue of the mother, sister, or infant's negligence, "the  


mother [and] sister should [not] recover for the emotional trauma which they allegedly  


suffered."19  This statement indicates that, if the victim contributed to the harm caused  


to the NIED claimants, there can be no NIED recovery.  


                          Another California case in the Dillon line of cases underscores this point.  


In Thing v. La Chusa the California Supreme Court explained why not all individuals  


                                                                                                                  20  Itreasoned that emotional  

who experience emotional distress canbringan NIEDclaim.                                                                                              


distress was "an unavoidable aspect of the 'human condition' " and the "overwhelming  


                                                                                            21    For instance, "[c]lose relatives who  

majority" of this distress was not compensable.                                                                                                                


witness the accidental injury or death of a loved one and suffer emotional trauma may  


not recover when the loved one's conduct was the cause of that emotional trauma."22  


             16           441 P.2d at 914.                 

             17           Id.  at 921.   

             18           Id.  at 916.         

             19           Id.  


             20           771 P.2d 814, 829 (Cal. 1989).  


             21           Id.  

             22           Id.  

                                                                                 -6-                                                                          7230

----------------------- Page 7-----------------------

These statements, although dicta, suggest that                                                                Dillon  and its progeny did not establish                        

that relatives of a tortfeasor can recover for NIED, even if the tortfeasor was also injured.                                                                                              

                                We have similarly suggested in dicta, citing the                                                             Dillon  line of cases, that the                          

bystander exception does not permit recovery when the tortfeasor and injured relative                                                                                                      

are the same.                    We described the bystander exception as applying only when "emotional                                                                             

distress [is] caused by the negligent conduct of a defendant                                                                                with whom the plaintiff had                             

                                                                   23  This limitation would seemingly preclude recovery when  

no preexisting relationship                                    ."                                                                                                                                

the defendant, i.e., the tortfeasor, and the injured relative are the same person.  In such  


a case, the plaintiff obviously has a preexisting relationship with the defendant.  


                                Furthermore, the Third Restatement of Torts emphasizes these indications  


that  NIED  recovery  is  not  applicable  under  the  circumstances  of  this  case.                                                                                                              The  


Restatement  formulates  the  bystander  exception  as  applying  when  "[a]n  actor  .  .  .  


                                                                                                                                                          24   Such a third person  

negligently causes sudden serious bodily injury to a third person." 


is missing when the negligent actor is the same person as the injured victim. In sum, this  


guidance uniformly indicates that the bystander exception established in Dillon, and  


adopted by this court in Tommy's Elbow Room, was never intended to permit recovery  


when the accident was caused by the plaintiff's injured relative.25  


                                The Schacks' arguments to the contrary are unavailing. The Schacks argue  


that Elizabeth's dual role as tortfeasor and injured relative is "irrelevant" because their  


                23              Chizmarv. Mackie                           ,896P.2d                196, 204(Alaska1995) (emphasis in original)                                           

(quoting  Burgess v. Superior Court                                                 , 831 P.2d 1197, 1200 (Cal. 1992)).                                                   

                24              RESTATEMENT                           (THIRD)                OF        TORTS:                   LIABILITY                 FOR          PHYSICAL                   AND  

EMOTIONAL HARM  48 (A                                          M. L       AW  INST . 2012) (emphasis added).                                                 


                25              We note that we are not foreclosing application of the bystander exception  


when one close relative of the plaintiff injures another close relative of the plaintiff.  In  


such a case, the tortfeasor and the injured relative are not the same person.  


                                                                                                   -7-                                                                                           7230

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claim otherwise satisfies the prima facie elements of an NIED claim.                                                                                                                     We disagree; this                      

dual role is relevant, as explained above, because it affects the initial question whether                                                                                                                         

the Schacks are the sort of plaintiffs meant to recover under the bystander exception.                                                                                                                                                      

And we have previously concluded that a plaintiff failed to plead an NIED claim even                                                                                                                                        

when she "[came] close to so many of the relevant factors for establishing NIED in the                                                                                                                                           

                                                                           26     Therefore, the fact that the Schacks otherwise satisfy the  

absence of physical injury."                                                                                                                                                                                                     

elements of an NIED claim is not dispositive.  


                                    The Schacks point to State Farm Mutual Automobile Insurance Co. v.  


                             27  which characterized a bystander's NIED claim as a direct claim rather than  


derivative  of  the  injured  relative's  claim.                                                                          They  are  seemingly  suggesting  that  the  


viability  of  their  NIED  claim  cannot  depend  on  their  relationship  to  Elizabeth.  


Lawrence, unlike this case, involved an insurance coverage dispute.  In Lawrence we  


resolved the question whether the parents of a child severely injured by an uninsured  


driver could collect policy limits for the parents' dual claims for emotional distress and  


punitive damages arising from the accident separate from those the child collected for  


physical injuries.28                                    We answered in the affirmative, in part because we rejected the  


insurer's attempts to equate the parents' NIED claim with one for loss of consortium.29  


We distinguished the two types of claims, explaining that "[u]nlike claims for loss of  


consortium,  claims  for  emotional  distress  concern  injuries  that  the  claimants  have  


                  26                Kallstrom v. United States                                              , 43 P.3d 162, 168 (Alaska 2002).                                        

                  27                26 P.3d 1074 (Alaska 2001);                                                      see also State Farm Mut. Auto. Ins. Co. v.                                                                     

Dowdy, 192 P.3d 994, 1002 (Alaska 2008) (holding that parents who witnessed their                                                                                                                                            

fatally wounded child were not injured "in the same accident" as the child but rather  


"were injured as a result of the death of their daughter in an accident").                                                                                                                        

                  28                26 P.3d at 1079.  


                  29                Id.  

                                                                                                                 -8-                                                                                                        7230

----------------------- Page 9-----------------------


suffered directly, rather than derivative injuries that resulted froman injury to another."                                                                                      


We decline to extend this dicta beyond the context of parsing injuries for the purposes  


of determining insurance coverage.  


                           In sum, we conclude that the Schacks have not stated a valid NIED claim  


under existing Alaska law because there is no indication that recovery was intended  



when the tortfeasor and injured relative are the same individual. 

              B.	          The D.S.W. Factors Do Not Support Recognizing A New Duty Of Care  


                           That Would Allow Recovery.  


                           We have stated that the bystander and preexisting duty exceptions to the  


physical injury requirement for NIED claims, while the only current exceptions, are not  


the  only  possible   exceptions.32                                     But  we  will  not  "easily  establish[]"  additional  


exceptions.33   "When deciding whether a novel action for negligence can be maintained  


under the common law, we consider whether a duty exists."34                                                                           The existence of an  


actionable duty of care is determined using the factors outlined in D.S.W. v. Fairbanks  


              30	          Id.  

              31           The   Schacks   also   allude   to   the   other   exception   to   the   physical   injury  

requirement   for   NIED   claims   -   the   preexisting   duty   exception   -   although   their  

argument on this point is not clear.                                    To the extent they argue that this exception permits                                     

recovery, this claim fails.                           For this exception to apply, the defendant must have had a                                                             

fiduciary or contractual relationship with the plaintiff.                                                      Kallstrom, 43 P.3d at 166.                              The  

Schacks do not allege they had either such relationship with Elizabeth.                                                                             We therefore   

conclude that the preexisting duty exception does not apply.                                                  

              32	          Id. at 165-67.  


              33           Id . at 166.  NIED claims must be constrained because they are too easy to  


feign and are likely to involve injuries so minimal that tasking courts with adjudicating  


fault would be unduly burdensome.   Chizmar v. Mackie, 896 P.2d 196, 201 (Alaska  


 1995) (citing Payton v. Abbott Labs, 437 N.E.2d 171, 178-79 (Mass. 1982)).  


              34           Kallstrom, 43 P.3d at 167.  


                                                                                     -9-	                                                                            7230

----------------------- Page 10-----------------------


North Star Borough School District                                                            .    Although the Schacks explicitly discuss these                                                                

factors in their briefing, at oral argument their counsel appeared to deny that they were                                                                                                                        

asking  us  to  establish   a   new   tort.     Regardless,   the   D.S.W.   factors   do   not   support  

recognizing a novel duty of care in this case.                                                                      

                                  D.S.W.   outlines   seven   factors   we   consider   in   determining   whether   a  

plaintiff's claim presents an actionable duty of care:                                                                   

                                  The   foreseeability   of   harm   to   the   plaintiff,   the   degree   of  

                                  certainty that the plaintiff suffered injury, the closeness of the                                                                                

                                  connection between the defendant's conduct and the injury                                                                                 

                                   suffered,  the    moral    blame    attached    to    the    defendant's  

                                  conduct, the policy of preventing future harm, the extent of                                                                                        

                                  the   burden   to   the   defendant   and   consequences   to   the  

                                  community of imposing a duty to exercise care with resulting                                                                        

                                  liability for breach, and the availability, cost and prevalence                                                               

                                  of insurance for the risk involved.                                                    [36]  

We consider each factor in turn.  


                                   Starting with factor one, the foreseeability of harm to the plaintiff, both  


parties  agree  that  this  factor  favors  the  Schacks,  and  as  a  general  matter  it  seems  


foreseeable  that  family  members  of  accident  victims  experience  emotional  distress  


regardless  of  who  was  at  fault.                                                            However,  in  the  context  of  an  NIED  claim,  


"foreseeability, standing alone, [does not] properly define[] the scope of a defendant's  


duty."37  Permitting NIED recovery based on the foreseeability of the harmalone "would  


                 35               628 P.2d 554, 555 (Alaska 1981).                                                         



                                  Id. (citing Peter W. v. S.F. Unified Sch. Dist., 131 Cal. Rptr. 854, 859-60  


(Cal. App. 1976)).  

                 37                Chizmar, 896 P.2d at 203; see also Thing v. La Chusa, 771 P.2d 814, 826  


(Cal. 1989) ("[I]t is clear that foreseeability of the injury alone is not a useful 'guideline'  


or a meaningful restriction on the scope of the NIED action.").  


                                                                                                          -10-                                                                                                   7230

----------------------- Page 11-----------------------

create indeterminate and potentially unlimited liability," and for this reason this factor                                                  


must be constrained by pragmatic and policy considerations.                                                                                                       

                                                                                                                               Accordingly, we assign  



this factor little weight in the context of the Schacks' claim. 


                           Moving to factor two, the degree of certainty that the plaintiff suffered  


injury, the Schacks note that it is undisputed that they suffered injury.  However as a  


general  matter,  we  have  characterized  emotional  injury  as  "relatively  trivial"  as  


compared to physical injury and have expressed concern that emotional distress can be  

                                 40  Therefore, although theSchacks' emotional distresswasundoubtedly  



genuine, this factor favors the Estate.  


                           As for factor three, the closeness of the connection between the defendant's  


conduct and the injury suffered, the Schacks argue that it is not disputed that Elizabeth's  


injuries caused their shock.  Similar to our factor one analysis, the connection between  


the injury of a relative and the family's emotional distress in general is unrelated to who  


was at fault.  The Estate does not make an argument on this point.  Therefore, this factor  


favors the Schacks.  


                           Turning to factor four, themoral blameattached to thedefendant's conduct,  


the Schacks argue that Elizabeth must be held accountable for her negligent conduct  


"[l]ike  every  other  driver."                               However,  we  have  previously  concluded  that  merely  


              38           Philbert v. Kluser                   , 385 P.3d 1038, 1042 (Or. 2016);                                       see also Mesiar v.                 

Heckman, 964 P.2d 445, 450-52 (Alaska 1998) (declining to impose a duty of care even                                                                                 

though the harm was foreseeable, because doing so would "expose [the defendant] to                                                                                         

litigation for almost any future management decision").                                    

              39           See State v. Sandsness, 72 P.3d 299, 306-07 (Alaska 2003) (declining to  


impose a duty of care even though foreseeability was present because the remaining  


D.S.W. factors "strongly outweigh[ed]" the foreseeability factor).  


              40           Chizmar, 896 P.2d at 201.  


                                                                                   -11-                                                                             7230

----------------------- Page 12-----------------------

negligent conduct - especially                                       conduct that results in only                                 emotional,   rather  than  

physical, injury - carries little moral blameworthiness.                                                           41  Because the Schacks allege  


that they suffered only emotional injury, this factor favors the Estate.  


                           Regarding factor five, the policy of preventing future harm, the Schacks  


claim that "Alaskans hearing about this incident will be more inclined to drive carefully  


if Elizabeth (and/or her estate) is held fully accountable for the damages she caused."  


However, this argument overlooks the fact that Elizabeth tragically died of traumatic  


injuries, and individuals are already naturally motivated to avoid traumatic injuries from  


any source. It is unlikely that the threat of liability (especially post-mortem liability) will  


add much to the naturally high incentive to avoid seriously injuring oneself. Therefore,  


this factor favors the Estate.  


                           Factor  six  concerns  the  extent  of  the  burden  to  the  defendant  and  


consequences to the community of imposing a duty to exercise care with resulting  


liability for breach. The Schacks argue this burden is negligible beyond that already paid  


for by insurance.   However, instances of individuals negligently injuring or killing  


themselves are not limited to car accidents, and thus there is a potential for imposing  

              41           See, e.g.,  Lynden Inc. v. Walker, 30 P.3d 609, 616 (Alaska 2001) ("As to  

moral blame, negligence resulting in a risk of personal injury is regarded as significantly                                                             

blameworthy in ways that negligence resulting only in emotional distress or economic                                                                          

loss is not.");             Mesiar, 964 P.2d at 451 ("Our cases have ascribed particular significance                                                    

to   the   moral  blameworthiness   of   negligence   that   creates   a   risk   of   death   or   serious  

personal   injury;   in   contrast,   we   have   ascribed   little   blameworthiness   to   ordinary  

negligence that merely causes economic or purely emotional harm.").                                                           

                                                                                    -12-                                                                               7230

----------------------- Page 13-----------------------

 greater costs on defendants. Given that we previously expressed reluctance to "open the                                                                                                                                                     


judicial floodgates" to new NIED liability for very similar reasons,                                                                                                                                this factor favors  


 the Estate.  


                                      Finally, turning to factor seven, the availability, cost, and prevalence of  


 insurance for the risk involved, the Schacks argue that Elizabeth's auto coverage insured  


 her and her victims against this type of loss.  But this reasoning is somewhat circular  


 because the Schacks are, in this very case, trying to prove that they are victims entitled  


 to an insurance payout.  And the expansion of NIED that the Schacks are arguing for  


 would not be limited to injuries caused by car accidents.  The full set of potential risks  


 includes many that are not commonly insured. Furthermore, in the car accident context,  


 distributing the limited pot of insurance money to a larger pool of victims would result,  


 in some cases, in the tortfeasor's relatives receiving money that otherwise would go to  


 non-negligent victims or their families.  Routinely imposing intra-family liability could  

                                                              43  or vexatious suits.  Therefore, this factor favors the Estate.  



 even lead to collusive 

                                      Overall then, factors one and three favor the Schacks (although factor one  


 is of limited significance here), and factors two, four, five, six, and seven favor the  


 Estate.  Of the seven factors, factor six carries the most significance in this case.  Policy  


                   42                 Hawks v. State, Dep't of Pub. Safety                                                                  , 908 P.2d 1013, 1017 (Alaska 1995);                                                   

see also D.S.W. v. Fairbanks N. Star Borough Sch. Dist.                                                                                                       , 628 P.2d 554, 555-56 (Alaska                                                            

 1981) ("[M]uch burdensome and expensive litigation would be generated if . . . lawsuits                                                                                                                                   

 [of the type the plaintiff was advocating] were allowed."). The Schacks counter that the                                                                                                                                                    

 absence of previous cases matching these facts uncovered by the research of either the                                                                                                                                                     

 parties or the superior court negates the "floodgates" argument, but a lack of litigation                                                                                                          

 does not necessarily indicate a lack of similar factual circumstances.                                                                                                                            Indeed, instances   

 of individuals negligently injuring themselves in proximity to close family members                                                                                                                                       

 could hardly be described as a rarity.                                                                    

                   43                 In this case Elizabeth's father is the personal representative of the Estate  


 and Elizabeth's mother and brother are the plaintiffs.  


                                                                                                                     -13-                                                                                                              7230

----------------------- Page 14-----------------------

considerations, such as not wanting to overburden courts or dramatically expand liability                                              

for potential defendants,44 militate strongly against allowing recovery.  Therefore, and  



especially in light of the fact that new NIED exceptions cannot be easily established, 


the D.S.W. factors do not support extending recovery to the Schacks.  

V.         CONCLUSION  


                       For the reasons explained above, we AFFIRM the superior court's grant of  


summary judgment in favor of the Estate.  

           44         Hawks,  908  P.2d  at   1017.  

           45         Kallstrom  v.   United  States,  43  P.3d   162,   166  (Alaska  2002).  

                                                                      -14-                                                                     7230  

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