What the court held
Case: Camp v. Anderson, No. 2005AP2407.
Issue: Is a claim for negligent infliction of emotional distress limited to cases where a bystander witnesses injury to a family member?
Holding: No. Regardless of the fact situation in which the claim arises, an action is viable unless barred by public policy.
Counsel: Peterson, Paul D., Harper, William D., Burgan, Lori L., Woodbury, MN, for appellant; Torvinen, Kyle H., Superior, for respondent.
Negligent infliction of emotional distress is a viable tort in Wisconsin, the Wisconsin Court of Appeals held on July 25.
Steven Camp is a 4-year-old, and Anthony Machones is a 13-year-old with Asperger’s Syndrome, In 2000, Anthony and Steven were playing in the Camps’ yard with Steven’s dog.
According to an eyewitness, Anthony pulled some tall reeds or cattails out of the ground, shoved them at the dog, and chased Steven with the cattails, with what appeared to be feces on the end. The eyewitness later saw Anthony jump and land with both feet on the dog. The dog was severely injured and was later euthanized.
Because of Anthony’s condition, he was not charged with any delinquency.
However, the Camps filed an action against Anthony and his parents, Harry and Brenda Anderson, claiming intentional infliction of emotional distress against Anthony and negligent supervision against the Andersons.
The intentional infliction claim against Anthony was dismissed, and the Camps moved to amend their complaint to allege negligent infliction of emotional distress against Anthony.
Douglas County Circuit Court Judge Michael T. Lucci denied the motion to amend the complaint, holding that direct claims for negligent infliction of emotion distress are not allowed under Wisconsin law. Judge Lucci also granted partial summary judgment to the Andersons, limiting damages to property damage for the loss of the dog.
The Camps appealed, and the Wisconsin Court of Appeals reversed in a decision by Judge Gregory A. Peterson.
The court held that Wisconsin law does recognize the tort of negligent infliction of emotional distress in this case.
In Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 517 N.W.2d 432 (1994), the Wisconsin Supreme Court noted that the court is reluctant to allow claims for negligent infliction of emotional distress, in the absence of any physical injury.
Nevertheless, the court did not disallow such claims altogether. Instead, the court concluded that the traditional elements of a tort action, combined with public policy considerations for limiting liability, should provide the framework for evaluating a bystander’s claim. Id., 183 Wis.2d at 652-653.
In the case at bar, the court of appeals rejected the Andersons’ argument — accepted by the trial court — that Bowen only allows bystander claims.
The court cited language from Bowen that a plaintiff may claim negligent infliction of emotional distress “regardless of the fact situation in which the claim arises.”
The court then distinguished the case of Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d 486, 627 N.W.2d 795.
In Rabideau, an off-duty police officer shot and killed Rabideau’s dog in front of her. The court of appeals rejected Rabideau’s negligent infliction claim, concluding that, despite the strong bonds formed between humans and pets, a dog is only property under the law and public policy barred recovery for emotional distress caused by damage to property.
Applying Rabideau, the court agreed that the decision bars recovery for any emotional distress Steven suffered as a result of witnessing the fatal injuring of his dog.
Nevertheless, the court found Rab-ideau not dispositive, because the complaint alleges that Steven suffered emotional distress not as a bystander, but due to Anthony’s directly threatening Steven with the feces-covered cattail.
Accordingly, the court concluded that the negligent infliction claim could go forward — unless the trial court finds on remand that it is otherwise barred by public policy — and reversed.
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David Ziemer can be reached by email.