Opinion
No. ED76044.
April 11, 2000.
Appeal from the Circuit Court of St. Louis County, Honorable Barbara Wallace.
Burton H. Shostak, D. J. Westling, Grant J. Shostak, MOLINE, SHOSTAK, STRAND MEHAN, LLC, 8015 Forsyth Blvd., St. Louis, MO 63105, ATTORNEYS FOR APPELLANT.
Paul E. Kovacs, Christine M. Kocot, ARMSTRONG, TEASDALE, LLP, One Metropolitan Square, Suite 2600, St. Louis, MO 63102, ATTORNEYS FOR RESPONDENT.
GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur.
Ron Bosch, plaintiff, appeals the trial court's judgment granting a motion to dismiss in favor of defendant, SSM Health Care Central Region d/b/a St. Joseph Health Center (SSM). Plaintiff's petition named three separate defendants: St. Louis Healthcare Network, SSM Healthcare Central Region, and St. Joseph Health Center. However, defendants' motion to dismiss was brought only by defendant SSM Health Care Central Region d/b/a St. Joseph Health Center. There is no mention of St. Louis Health Care Network in defendant's motion to dismiss other than in the caption. However, a review of the petition reveals that it was directed to be served upon the same person for each defendant. Further, paragraph three of the petition alleges that St. Louis Health Care Network and SSM Health Care Central Region own and operate St. Joseph Health Center. Thus, it is apparent that the motion to dismiss was brought on behalf of all the named defendants. We therefore treat the judgment of the trial court as final for purposes of this appeal.
Plaintiff contends that the trial court erred in dismissing his claim for negligent infliction of emotional distress because: (A) the trial court did have subject matter jurisdiction because the Workers' Compensation Act did not bar his claim; and (B) he pleaded a submissible count for negligent infliction of emotional distress because he pleaded that: (1) defendant should have known that its conduct involved an unreasonable risk to plaintiff; (2) that plaintiff was present at the scene of an injury producing sudden event; and (3) that he was placed in reasonable fear of physical injury to his person.
When reviewing the trial court's dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Vickers v. Progressive Cas. Ins. Co., 979 S.W.2d 200, 202 (Mo.App.E.D. 1998). We treat the facts alleged as true and construe the allegations liberally and favorably to plaintiff. Id. A petition will not be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief. Vickers, 979 S.W.2d at 202. When the trial court does not state its basis for dismissal, we presume it was based on the grounds stated in the motion to dismiss. Manes v. Depew, 987 S.W.2d 527, 528 (Mo.App.E.D. 1999). Dismissal will be affirmed if it can be sustained on any ground supported by the motion to dismiss. Id.
The petition reveals that Patricia Bosch, plaintiff's wife, was a nurse employed by defendant SSM. On February 9, 1994, she was ordered to draw blood from a patient in a crowded hallway of St. Joseph Health Center. The patient was infected with hepatitis C, though plaintiff's wife was not informed of this fact. After drawing the blood and while in the process of disposing of the needle, plaintiff's wife tripped over a small child, causing herself to be stuck by the contaminated needle.
On February 5, 1999, plaintiff filed a two-count petition in the Circuit Court of St. Louis County against defendants. In Count One of his petition plaintiff alleged that defendants' agent was negligent in ordering his wife to draw blood in the congested hallway and in failing to notify her that the patient had hepatitis C. He further alleged that as a result of the alleged negligence, his wife contracted hepatitis C and he lost the consortium of his wife. Count Two of plaintiff's petition, a claim for negligent infliction of emotional distress, alleges:
17. Plaintiff realleges the allegation of paragraph 1-16 contained in Count I of his Petition as if fully set forth herein.
18. Defendants knew or should have known that their conduct as described in Count I created an unreasonable risk of bodily harm to plaintiff.
19. Plaintiff was and has been at the scene of an injury producing sudden event.
20. Plaintiff was and is in the zone of danger in that he is continually at risk of contracting hepatitis C or other blood disease from his wife.
21. Plaintiff was and is in fear of injury to his own person by contracting a disease.
22. The described acts of defendants have caused plaintiff severe mental and emotional distress and anguish and pain of body.
On March 15, 1999, defendants filed a Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction. The motion alleged that plaintiff's wife filed a claim, which was pending, for her injuries and damages against SSM under Missouri's Workers' Compensation Law. Defendants argued that the trial court was without jurisdiction to decide plaintiff's claims because section 287.120(2) RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted) provides the exclusive remedy for his claims. In addition, they contended that plaintiff failed to state a cause of action for negligent infliction of emotional distress because his petition does not state sufficient facts to bring him within the zone of danger rule, in that he does not allege that: (1) he was present at the time his wife drew the blood and was stuck by the contaminated needle; and (2) SSM should have realized that ordering his wife to draw blood from a person infected with hepatitis C placed him in peril or within the zone of danger. On April 8, 1999, the trial court granted defendant's motion to dismiss, without providing specific reasons for its judgment.
On appeal, plaintiff admits that section 287.120(2), the exclusivity provision of Missouri Workers' Compensation Law, bars his claim for loss of consortium. Section 287.120(2) provides in pertinent part:
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next of kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.
Therefore, the only issue on appeal is whether the trial court erred in dismissing plaintiff's claim for negligent infliction of emotional distress.
In part A of his point, plaintiff contends that his claim was not barred by section 287.120(2) and that the trial court had jurisdiction to decide his claim. Contrarily, defendants argue that plaintiff's claim for negligent infliction of emotional distress is like a loss of consortium claim in that it is a separate, distinct and personal legal claim and is derivative only in the sense that it must be occasioned by his wife's injury and, therefore, like a loss of consortium claim, is barred by section 287.120(2).
In Missouri, the rights and remedies granted to employees or their spouses under workers' compensation law are exclusive and preclude all common law rights and remedies, except such rights and remedies as are not provided for by chapter 287. Section 287.120(2). However, Chapter 287 and cases construing its various provisions, up to the present time, have focused on injuries to employees and resultant losses by them and derivative losses, such as loss of consortium, by certain member of their family. Missouri courts have consistently held that those derivative losses are barred by section 287.120. See Felts v. Ford Motor Co., 916 S.W.2d 798 (Mo.App.W.D. 1995). However, we have never decided if the spouse of an employee is barred by Chapter 287 from maintaining a common law claim outside of workers' compensation for negligent infliction of emotional distress, when his wife has already made a claim under that chapter.
The parties have not directed us to nor have we located a Missouri case instructive on this issue, but because workers' compensation law is in derogation to the common law, it must be strictly construed where common law rights and remedies are affected. Porter v. Erickson Transport Corp., 851 S.W.2d 725, 736 (Mo.App.S.D. 1993). Further, when the question is close, the decision should be weighted in favor of retention of common law rights. Id. We note that our Supreme Court recognized that an injured third person has a common law right to maintain a claim for negligent infliction of emotional distress. See Asaro v. Cardinal Glennon Memorial Hosp., 799 S.W.2d 595 (Mo. 1990). Thus, the issue is whether section 287.120(2) excludes plaintiff's claim because he is the spouse of an injured employee.
Initially, we note that there are three types of "exclusive liability" clauses, which are found in the states' workers' compensation laws; from the narrowest to the broadest they are as follows: the Massachusetts type, which only says that the employee, by coming within the act, waives his common law rights; the California and Michigan type, which says that the employer's liability shall be "exclusive," or that he shall have "no other liability whatsoever"; and the New York type, which carries this type of statute one step further by specifying that the excluded actions include those by "such employee, his personal representatives, husband, parents, dependants or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death." 6 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW Ch. 12, Section 66.10-66.21 (1998).
Missouri's exclusivity provision is similar to New York's.Id. Missouri's provision is very broad in its scope and the language is nearly identical with the exception that it contains the qualifying language, "except such rights and remedies as are not provided for by this chapter." Section 287.120(2). Other states have adopted similarly broad provisions. For example, Louisiana's exclusivity provision provides:
A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependant on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
In a case factually similar to plaintiff's case, The Louisiana Court of Appeals, Third Circuit, found that the exclusive remedy provision of the Louisiana workers' compensation law did not bar tort claims against an employer, filed by family members of an employee, who was infected with hepatitis B at her place of employment, seeking damages for their fear of contracting the disease, medical expenses, and pain and suffering from testing and vaccines. Raney v. Walter O.z Moss Regional Hosp., 629 So.2d 485, 489 (La.App.3 Cir. 1993).
In Raney the defendants argued that the family members were limited in pursuing an action against them by the exclusivity provision of the workers' compensation law in the same manner as if they had brought a loss of consortium claim. Conversely, the family members contended that their claim for damages due to their fear of contracting hepatitis B was not the employee's claim and was not prohibited by the exclusivity provisions of the workers' compensation law.
The Louisiana Court of Appeals recognized that there was a line of cases barring actions under the exclusivity provision of the workers' compensation laws. Raney 629 So.2d at 489. However, the court distinguished those cases holding that the claims of the plaintiffs in those cases, such as loss of consortium, wrongful death or survival action, were not only hinged upon the injury to the injured employee, and a derivative thereof, but more importantly the claims were directly intertwined with the employee's injury. Id. Consequently, a plaintiff bringing an action for loss of consortium experiences a loss because the employee injured on the job is suffering. Id. Whereas the court held that the claims of the family members in Raney were corollary to the suffering of the employee and that the family members were not seeking damages because the employee could no longer do the things she did before she was injured or because she could not bring home a pay check. Id.
The reasoning of Louisiana Court of Appeals is sound in that losses, such as loss of consortium, while rightfully termed "separate, distinct and personal," see Wendt v. General Accident Ins. Co., 895 S.W.2d 210, 214 (Mo.App. 1995), are clearly hinged and directly intertwined with the injury of the employee. Contrarily, plaintiff's claim for negligent infliction of emotional distress isn't hinged or directly intertwined with his wife's injury. While his fear of contracting hepatitis C derives from his relationship to his wife, his claim does not. He is not seeking damages "on account of" his wife's injury and he is not suffering because his wife can no longer do the things she did prior to her injury or because she can no longer bring home a paycheck. Rather, his "severe mental and emotional distress and anguish and pain of body" stems from his fear of contracting hepatitis C, a potentially fatal disease, and is personal and independent of his wife's injury. Therefore, his claim is not barred by section 287.120(2).
In part B of his point, plaintiff argues that his petition set forth a properly pleaded claim for negligent infliction of emotional distress. Defendants contend that plaintiff failed to state a cause of action because he did not plead sufficient facts showing that he was actually exposed to hepatitis C and, therefore, his fear of contracting the disease is unreasonable.
Prior to 1983, a defendant was not liable for negligence resulting in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. Bass v. Nooney, 646 S.W.2d 765, 768 (Mo. 1983). This rule, otherwise known as the impact rule, had been adopted for the following reasons: (1) the difficulty in proving a causal connection between the damages claimed by the plaintiff and the act of the defendant which is claimed to have induced the mental and emotional distress; (2) permitting such suits would encourage imaginary and fraudulent claims; and (3) the probability that permitting recovery would release a flood of new litigation made up of such claims. Bass, 646 S.W.2d at 769.
In 1983, our Supreme Court abrogated the impact rule, in favor of a more liberalized rule which allowed plaintiff to recover for negligent infliction of emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant. Bass, 646 S.W.2d. at 772-773. One of the primary reasons for adopting this new rule was that psychiatric tests and refinement of diagnostic techniques enable science to establish with reasonable medical certainty the existence and severity of psychic harm. Bass, S.W.2d. at 769.
However, Bass left open the question of whether a cause of action exists in Missouri when a plaintiff, a bystander, suffers mental or emotional distress upon observing death or injury to a third party caused by a defendant's negligence. Asaro v. Cardinal Glennon Memorial Hosp., 799 S.W.2d 595, 597 (Mo. 1990). In Asaro, our Supreme Court held that a plaintiff states a claim for negligent infliction of emotional distress upon injury to a third person only upon a showing: (1) that the defendant should have realized that his conduct involved an unreasonable risk to the plaintiff; (2) that plaintiff was present at the scene of an injury producing, sudden event; and (3) that plaintiff was in the zone of danger, i.e., placed in a reasonable fear of physical injury to his or her person. Asaro, 799 S.W.2d 595-600 (Mo. 1990).
In 1998, in Pendergist v. Pendergrass, 961 S.W.2d 919, 925 (Mo.App.W.D.), our colleagues in the Western District adopted an actual exposure rule in fear of AIDS cases that was based on the principles enunciated in Bass. They held that the first part of the [Bass] test, that the defendant should have realized that his conduct involved an unreasonable risk of causing the distress, essentially requires that the fear or distress experienced by the plaintiff be a reasonable consequence of the defendant's conduct.Id. If fear is an unreasonable consequence of defendant's conduct, the defendant cannot be expected to recognize that its conduct could cause the distress. Id. The court held that absent proof of actual exposure to the HIV virus as a result of defendant's negligent conduct, that is, proof of both a scientifically accepted method, or channel, of transmission and the presence of the HIV virus, the fear of contracting AIDS is unreasonable as a matter of law . . . Id. Applying the actual exposure rule to the plaintiff's claim in Pendergist, the court found that his fear was unreasonable and thus it did not reach the second prong of the Bass test, that the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.
Here, plaintiff's petition set forth a claim for negligent infliction of emotional distress that essentially mirrors the elements of the zone of danger test for bystander liability established in Asaro. Although he plead that he "was and has been present at the scene of an injury producing sudden event" and we must consider this allegation as true, plaintiff admits in his brief that he was not present when his wife was stuck with the infected needle. He also plead that he "was and is in the zone of danger in that he is continually at risk of contracting hepatitis C or other blood disease from his wife." Construing the averments of his petition liberally and favorably to plaintiff, we find he sufficiently alleged that he has been exposed to hepatitis C and is in danger of contracting the disease from his wife, and that his fear of physical injury to his person is therefore reasonable.
Even though plaintiff plead sufficient facts alleging that the defendants should have realized that their conduct involved an unreasonable risk to him and that emotional distress is a reasonable consequence of his fear of contracting hepatitis C from his wife, these facts, alone, are insufficient to state a claim for emotional distress. Under Bass, plaintiff is required to establish that his emotional distress is medically diagnosable and of sufficient severity so as to be medically significant. The requirement is the causation element that must be shown in order to recover. Soper v. Bopp, 990 S.W.2d 147, 157 (Mo.App.S.D. 1999). Here, there is no allegation that plaintiff sought treatment, or that his "severe mental and emotional distress and anguish and pain of body" has been or is diagnosable and of sufficient severity to be medically significant. See Davis v. Shelton, 710 S.W.2d 8, 11 (Mo.App.W.D. 1986). Therefore, plaintiff failed to state a claim for negligent infliction of emotional distress.
JUDGMENT AFFIRMED.