WILSON v USA, 9835362o
U.S. 9th Circuit Court of Appeals
WILSON v USA
9835362o
MARILYN WILSON; MARILYNWILSON, as Guardian of Lori DeeWilson, a minor,No. 98-35362Plaintiffs,D.C. No.v.CV 94-00488 HRHUNITED STATES OF AMERICA,ORDERDefendant-third-party-CERTIFYING THEplaintiff-Appellee,QUESTION TOv. ALASKASUPREME COURTBLANCHE KALLSTROM,Third-party-defendant-Appellant.
Appeal from the United States District Courtfor the District of AlaskaH. Russel Holland, District Judge, PresidingArgued and SubmittedAugust 5, 1999--Anchorage, AlaskaFiled September 14, 1999Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott, andA. Wallace Tashima, Circuit Judges.
_____________________________ORDER I.We hereby certify to the Supreme Court of Alaska thatthere is involved in this case a question of Alaska law whichmay be determinative of the cause and as to which there is nocontrolling precedent in the decisions of the Alaska SupremeCourt. Pursuant to Rule 407(a) of the Alaska Rules of Appel-late Procedure,1 therefore, we respectfully request the AlaskaSupreme Court to answer the following question of Alaskalaw: Whether a plaintiff, who has not suffered physical injury, may recover damages for the negligent inflic- tion 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.We do not intend, by our phrasing of the question, to restrictthe Alaska Supreme Court's consideration of this request. Weacknowledge that, in its discretion, the Alaska Supreme Courtmay reformulate the question.II.This is an action brought under the Federal Tort Claims Act("FTCA"), 28 U.S.C. SS 1346(b), 2671-80, in which BlancheKallstrom ("Kallstrom") seeks to recover on her counterclaimagainst the United States (the "government") for the negligentinfliction of emotional distress ("NIED"), resulting from herunwitting participation in a child's accidental ingestion ofcaustic lye on government property. The FTCA provides thatthe government "shall be liable [for] tort claims, in the samemanner and to the same extent as a private individual underlike circumstances . . . ." 28 U.S.C. S 2674. The FTCA furtherprovides that the government is liable "if a private personwould be liable to the claimant in accordance with the law ofthe place where the act or omission occurred." 28 U.S.C.S 1346(b)(1). See Richards v. United States,
369 U.S. 1
, 11(1962) (holding that FTCA actions are governed by the lawof the state where the act or omission occurred). Since theactions at issue in this case took place in Alaska, Alaska lawcontrols the liability of the government.III.On November 27, 1993, Kallstrom and other members ofthe public attended a social function and dance at Jake'sPlace, an alcohol abuse transitional care facility operated bythe Bristol Bay Health Corporation in Dillingham, Alaska.Bristol Bay operated the facility under contract with theIndian Health Service of the U.S. Public Health Service.Among the attendees was nine-year old Lori Dee Wilson("Lori Dee"). The lights at the facility had been dimmed forthe dance. Non-alcoholic beverages were available in thekitchen adjacent to the dancing area. Kallstrom went to thekitchen to get Lori Dee a drink. Kallstrom poured a drinkfrom a pitcher sitting on the counter which she believed to befruit juice and gave it to Lori Dee. In fact, the pitcher con-tained a lye-based caustic detergent that caused severe, per-manent internal injuries to Lori Dee upon ingestion. As aresult of her mistake, Kallstrom sustained severe shock andemotional distress. She has continued to suffer severe emo-tional distress in the months following the tragic incident.Marilyn Wilson, Lori Dee's mother, on her own behalf andas guardian of Lori Dee, filed a complaint against the govern-ment for negligence. Kallstrom was not named as a defendant,but the government brought a third-party complaint againsther for negligence, seeking an allocation of fault. Kallstromthen filed a counterclaim against the government for her inju-ries assertedly caused by the government's negligence.The district court granted summary judgment in favor ofWilson and against the government, concluding that by allow-ing an employee or resident of the facility to place the causticlye in the pitcher and leave it near the sink, the governmentwas negligent as a matter of law. Wilson then settled with thegovernment and her claims were dismissed. The governmentdismissed its third-party complaint against Kallstrom for anallocation of fault. This left only Kallstrom's counterclaimagainst the government.Kallstrom next moved for partial summary judgmentagainst the government on her claim and the governmentmoved to dismiss Kallstrom's counterclaim for failure to statea claim for relief for NIED under Alaska law. The districtcourt granted the government's motion to dismiss and deniedKallstrom's motion for partial summary judgment. Reconsid-eration was denied. Kallstrom timely appeals.On appeal, Kallstrom contends that the conduct of those forwhom the government is legally responsible has negligentlyinflicted emotional distress upon her, and that she should bepermitted to recover damages under Alaska negligence law.IV.The parties disagree regarding whether Alaska law allowsa claim for NIED where the negligence of the defendantcauses a plaintiff to become an active participant in causinginjury to a third party. Generally, Alaska law does not permitdamages to be awarded for NIED without physical injury. SeeHancock v. Northcutt, 808 P.2d 251, 257 (Alaska 1991).However, there are two exceptions to this rule.The first exception is for persons characterized as"bystanders," and was recognized in Tommy's Elbow Room,Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986). InKavorkian, the Alaska Supreme Court recognized a bystand-er's right to recover damages for NIED caused by injury toanother. Id. at 1041. The Alaska Supreme Court adopted theguidelines set out in Dillon v. Legg, 441 P.2d 912, 920 (Cal.1968), for determining whether the risk of harm to the plain-tiff was reasonably foreseeable to the defendant, thus creatinga duty of due care. These guidelines are: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a dis- tance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after it occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.Kavorkian, 727 P.2d at 1041 (quoting Dillon, 441 P.2d at920).The bystander exception does not apply to Kallstrombecause she is not "closely related" to Lori Dee. A blood rela-tionship between plaintiff and victim has been required byevery Alaska court that has applied the bystander theory. See,e.g., M.A. v. United States, 951 P.2d 851, 852 (Alaska 1998)(parents sued for NIED stemming from failure to timely diag-nose child's pregnancy); Beck v. State, 837 P.2d 105, 110(Alaska 1992) (plaintiff suing for NIED was decedent'smother); Croft v. Wicker, 737 P.2d 789, 791 (Alaska 1987)(parents sued for NIED caused by molestation of daughter);Kavorkian, 727 P.2d at 1043 (father sued for NIED caused byobserving gradual death of daughter). Kallstrom was notrelated to Lori Dee. She was just a friend whom Kallstromwould see every two or three months. Kallstrom does notmeet the close relationship qualification.The second exception is where the defendant owes theplaintiff a preexisting duty, as recognized in Chizmar v.Mackie, 896 P.2d 196, 203 (Alaska 1995). Under the preexist-ing duty of care theory, before a defendant can be held liablefor negligence, it must owe a duty of care to the plaintiff. SeeBolieu v. Sisters of Providence in Wash., 953 P.2d 1233, 1235(Alaska 1998); Chizmar, 896 P.2d at 203. Whenever a defen-dant stands in a contractual or fiduciary relationship with theplaintiff and the nature of this relationship imposes on thedefendant a duty to refrain from conduct that would foresee-ably result in emotional harm to the plaintiff, the plaintiffneed not establish a physical injury in order to recover forNIED. See id.In the absence of any other source of a duty of care--imposed, for example, by statute, contract, or a legal doctrine-- Alaska courts consider seven factors in deciding whethera duty of care exists: The forseeability 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 liabil- ity for breach, and the availability, cost, and preva- lence of insurance for the risk involved.D.S.W. v. Fairbanks N. Star Borough Sch. Dist. , 628 P.2d554, 555 (Alaska 1981). Alaska courts weigh these "D.S.W.factors" to determine whether a duty of care exists, and treatthe legal relationship between individuals as the focus for theduty question in analyzing the factors. See Bolieu, 953 P.2dat 1235.Recently, the Alaska Supreme Court offered further guid-ance to determine whether a preexisting duty exists. In M.A,951 P.2d at 854, the Court held that the existence of a dutyturns not on the particularized facts of a given case, but ratheron the basic nature of the relationship between the parties tothe cause of action. The preexisting duty exemption does notapply to Kallstrom either, since the relationship between herand the government was neither contractual nor fiduciary.The district court concluded that Kallstrom could not claimdamages for NIED from the government because she did notsuffer physical injury and did not qualify for either exception.The facts of Kallstrom's case, however, do not fit neatlywithin the NIED doctrine, as it has been developed to date bythe Alaska Supreme Court. This case differs from the usualbystander case because the negligence of the governmentcaused Kallstrom to be an active participant -- not merely abystander -- in causing injury to Lori Dee. Here, Kallstromsuffered her emotional injury as a direct result of the govern-ment causing her, through its negligence, to injure another.This case also differs from the normal preexisting duty casebecause, even though the government had no preexisting dutyto Kallstrom, it was through its negligence in leaving out thecaustic lye that Kallstrom injured Lori Dee and thus sufferedsevere emotional distress.We have found no Alaska case law that resolves this ques-tion of whether a plaintiff who suffers no physical injury mayrecover damages for NIED when, through the negligence ofa defendant, the plaintiff unwittingly becomes the instrumentthat causes injury to an innocent victim. A declaration by theAlaska Supreme Court on this question would likely resolvethe state law question that would be determinative of the par-ties' dispute.IT IS SO ORDERED.Respectfully submitted,Procter Hug, Jr., Chief Judge, presiding the end
___________________________FOOTNOTES 1 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 bank- ruptcy court or United States bankruptcy appellate panel, when requested by the certifying court if there are involved in any pro- ceeding 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 con- trolling precedent in the decisions of the supreme court of this state.