Bass v. Nooney Co.

646 S.W.2d 765, 1983 Mo. LEXIS 332

• Court: Supreme Court of Missouri
• Decided: February 23, 1983
• Docket: 63926
• Status: Published

Opinions

SOLBERT M. WASSERSTROM, Special Judge.

Plaintiff Collette Bass seeks damages for mental distress caused by the alleged negligence of defendants Nooney Company and Otis Elevator Company. Trial started before a jury, but at the close of plaintiff’s evidence each defendant moved for a directed verdict. Both motions were sustained by the trial court on the ground of the “impact rule.” Plaintiff appealed to the Missouri Court of Appeals, Eastern District, which affirmed. On plaintiff’s application, this court ordered transfer here. We reverse and remand for a new trial.

The evidence introduced on behalf of plaintiff showed the following facts. Plaintiff was employed by General Dynamics Company which occupied several floors of the Pierre Laclede Center, a structure owned and operated by defendant Nooney.¹ Plaintiff’s duties in part consisted of serving as a relief receptionist so that the regular receptionists on various floors could take periodic rest breaks and lunch periods.

On April 6, 1976, plaintiff entered an elevator at the 20th floor about 11:15 a.m.² in order to go to the 23rd floor to relieve the receptionist there. The elevator started in the usual manner, but then plaintiff heard a grinding noise and the elevator came to a stop. Plaintiff waited a short while, hoping that the elevator would start up again, but when it did not she began punching the emergency button. She could hear the emergency bell ring, but no voice came through the intercommunication system inside the elevator, nor did any help come from the outside.

After about 10 to 15 minutes, plaintiff began to pound on the door of the elevator and shout for help. Response came from a man in the corridor who announced himself simply as “Don.” Plaintiff asked him to summon someone who could get her out and also to notify her work supervisor. Don cautioned plaintiff “don’t panic” and he said he would get help. Soon thereafter plaintiff’s supervisor did call to her through the door and asked how she was. Plaintiff responded that she was beginning to feel dizzy. After about 15 minutes, plaintiff was getting warm and feeling strange. She went to a corner of the elevator and slid to the floor.

The maintenance people eventually arrived about thirty minutes after the elevator stalled, and they instructed plaintiff to try to pry apart the inner elevator doors while those on the outside worked at prying open the outer doors. Finally at about 11:45 a.m. the elevator doors were opened, disclosing the elevator to have stopped about a foot above the floor. Plaintiff was assisted from the elevator and her supervisor took her to the ladies room where a cold towel was put on her head and face. She was instructed to spend the balance of the day at her desk doing whatever work she could there without using the elevators. At the end of the working day, she asked a fellow worker to drive her home. During the course of that ride the driver remarked that she seemed to be “sliding and bobbing.”

After a restless night at home, plaintiff reported to work the next day. During that day she boarded an elevator, but after ascending one floor she fell over, was caught by other passengers and was taken to an area close by. A company doctor was called, who advised her to go to the hospital and he escorted her there. On examination at the hospital, she was hyperventilating, unable to speak above a murmur, was lightheaded and anxious. Her history as reflected by the hospital record, showed that she had experienced acute anxiety, slurred speech, her equilibrium was off, she felt lightheaded, cold and thoroughly frightened and too scared to sleep the night before.

Plaintiff was admitted to the hospital and was interviewed by a psychiatrist, Dr. Hart-nett. She was placed under heavy sedation and stayed as a hospital patient for a period of five days. After plaintiff was released from the hospital, she made office visits to Dr. Hartnett twice and also talked to him by telephone about medication. She did not return to work until May 2, 1976, almost a month after the elevator incident. Since then, she gets tense and her head feels strange if she rides an elevator to a high altitude, she is tense riding in cars, and she is not as patient with her family and children as she used to be.

Dr. Hartnett, the attending psychiatrist, testified that when he saw plaintiff at the hospital, she suffered from extreme anxiety and was unable to speak clearly. She had objective symptoms of anxiety, hyperhidro-sis of her palms, she was hyperventilating, her pupils were dilated, and her walking was unstable. His medical diagnosis was a severe anxiety reaction which he testified, with medical certainty, was precipitated by being stuck in the elevator. He agreed, however, that • contributing factors to the situation were the facts that plaintiff was at that time in the process of obtaining a divorce and that she was taking care of her mother who had recently suffered a stroke. Dr. Hartnett reported to General Dynamics Company that plaintiff was able to return to the duties of her employment as of May 2, 1976, and he also expressed an opinion in a report dated July 15, 1976, that plaintiff would not have any permanent disability from the emotional damage done to her by reason of the elevator incident.

Plaintiff also introduced the testimony of William Faughn, Jr., an Otis employee, who testified that Otis had a full maintenance contract for the Pierre Laclede Center elevators, that Faughn serviced that building once a day, and that the management personnel or building maintenance personnel had nothing to do with maintaining the elevators.

The trial court entered its directed verdict and the court of appeals affirmed on the basis that plaintiff suffered no physical trauma at the time of the elevator episode. Whether such physical trauma should be required as a prerequisite for recovery is the principal question for decision. However, there is a preliminary question to be considered as to whether plaintiff can properly rely upon the principle of res ipsa lo-quitur under the facts of this case.

I.

Plaintiff made no effort to prove any specific acts of negligence by either defendant. Rather, she relied on the doctrine of res ipsa loquitur. Defendants deny that the doctrine mentioned has any application here.

The doctrine of res ipsa loquitur applies when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. This doctrine has frequently been applied in elevator cases. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102 (1956); Warner v. Terminal R. Ass’n of St. Louis, 363 Mo. 1082, 257 S.W.2d 75 (1953); Meade v. Missouri Water & Steam Supply Co., 318 Mo. 350, 300 S.W. 515 (1927); Bartlett v. Pontiac Realty Co., 224 Mo.App. 1234, 31 S.W.2d 279 (1930); Stroud v. Booth Cold Storage Co., 285 S.W. 165 (Mo.App.1926).

No valid objection to the application of the doctrine can be made here on the ground of there being two defendants. On the facts of this case, the jury could reasonably find that either or both of the defendants were in control of the elevator, so as to make the application of res ipsa loquitur proper. Greet v. Otis Elevator Company, 187 A.2d 896 (D.C.1963). See Crystal Tire Company v. Home Service Oil Company, 465 S.W.2d 531 (Mo.1971).

Defendants contend, however, that there can be no application of the doctrine here because the evidence does not show any sudden lurch or similar violent movement to the elevator. But whether the elevator fell downward (as was true in Warner, Meade and Bartlett), made an unexpected start (as was true in Stroud), jerked upward (as in Clark), or stalled between floors as here, all are sudden unusual malfunctions which would not normally occur without negligence of the parties in charge. Res ipsa loquitur therefore applies.

II.

The entrenched rule presently in force in Missouri is that a defendant is not liable for negligence resulting in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. Trigg v. The St. Louis, Kansas City & Northern Railway Company, 74 Mo. 147 (1881); Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S.W. 345 (1893); Weissman v. Wells, 306 Mo. 82, 267 S.W. 400 (1924); Porter v. St. Joseph Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S.W. 913 (banc 1925); Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20 (banc 1927); Gambill v. White, 303 S.W.2d 41 (Mo.1957); Brisboise v. Kansas City Public Serv. Co., 303 S.W.2d 619 (Mo. banc 1957); Pretsky v. Southwestern Bell Telephone Company, 396 S.W.2d 566 (Mo.1965); Williams v. School District of Springfield R-12, 447 S.W.2d 256 (Mo.1969); Crutcher v. Cleveland, C., C. & St.L.R.R., 132 Mo. App. 311, 111 S.W. 891 (1908); Heiberger v. Missouri & Kansas Telephone Co., 133 Mo. App. 452, 113 S.W. 730 (1908); McCardle v. George B. Peck Dry Goods Co., 191 Mo.App. 263, 177 S.W. 1095 (1915); State ex rel. and to Use of Renz v. Dickens, 95 S.W.2d 847 (Mo.App.1936).

Under the authorities just cited, the trial court had no choice but to sustain the motion to dismiss and the court of appeals had no choice but to affirm. The question before this court is whether the long standing “impact rule” should be reconsidered and changed.

The impact rule developed concurrently in England and in the United States during the latter part of the 19th century. The case generally considered to be the leading one was Victorian Railways Commissioners v. Coultas, 13 App.Cas. 222 (P.C.1888). Although Victorian Railways was overruled in Great Britain thirteen years later, the impact rule flourished and grew to general acceptance in this country. The rule was adopted in New York by Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896) and in Massachusetts by Spade v. Lynn & B.R. Co., 168 Mass. 285, 47 N.E. 88 (1897). These cases proved greatly influential and began to be followed uniformly in other states.

The reasons generally given for adopting this rule were the following: (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.

Ever since the turn of the century, the impact rule and the rationale given in support of it came under a barrage of scholarly criticism. The leading and most frequently cited articles on the subject are: Throck-morton, Damages for Fright, 34 Harv.L. Rev. 260 (1921); Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033 (1936); Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Comment, Negligently Inflicted Mental Distress: The Case For An Independent Tort, 59 Geo.L.J. 1237 (1971); Comment, Negligence and the InBiction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U.Chi.L.Rev. 512 (1968); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939). Extensive collections of other writings appear in 63 Geo.L.J. 1179 (1975); Comment, Bystander Recovery for Negligent Infliction of Emotional Distress in Iowa: Implementing an Optimal Balance, 67 Iowa L.Rev. 333 (1982). Articles of especial local interest in Missouri are: Note, Mental Distress — The Impact Rule, 42 UMKC L.Rev. 234 (1973); Note, Negligent Infliction of Emotional Distress Absent Physical Impact or Subsequent Physical Injury, 47 Mo.L. Rev. 124 (1982); Note, Torts — Negligence Without Impact, 34 UMKC L.Rev. 474 (1966); Mo.Bar C.L.E., 1 Mo.Tort Law, § 5.1. Other recent law review articles are: Nolan and Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hastings L.J. 583 (1982); Comment, Duty, Foreseeability, and the Negligent Infliction of Mental Distress, 33 Me.L.Rev. 303 (1981); Comment, Molien v. Kaiser Foundation Hospitals: California Expands Liability for Negligently Inflicted Emotional Distress, 33 Hastings L.J. 291 (1981); Note, Negligent Infliction of Emotional Distress in New Jersey: Compensating the Foreseeable Plaintiff, 32 Rutgers L.Rev. 796 (1979).

More importantly, experience showed more and more clearly the unfairness and inequity of the impact rule. For a long while the courts attempted to ameliorate the effects of the rule by an ever increasing liberalization of the interpretation of “physical impact.” Eventually, however, the courts began an outright repudiation of the doctrine. By 1959, this trend had proceeded to the point where a clear majority of the jurisdictions had rejected any requirement of a contemporaneous physical trauma. Annot, 64 A.L.R.2d 100, l.c. 143 (1959). Since then still more jurisdictions have abandoned the impact rule, including New York and Massachusetts, the states of origin. Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978).

In answer to the objection concerning difficulty of proof as to mental trauma, the prevailing answer became that the development of psychiatric tests and refinement of diagnostic techniques have enabled science to establish with reasonable medical certainty the existence and severity of psychic harm. 63 Geo.LJ. 1179, 1185-86 (1975). Moreover, as stated in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 87 (1970):

“Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law. ‘We realize that there may be difficulties in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the problem of tracing a causal connection from negligence to injury is not peculiar to cases without impact and occurs in all types of personal injury litigation. * * * in any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim.’ Falzone v. Busch, 45 N.J. 559, 561, 214 A.2d 12, 15-16 (1965). We recognize the recent view of the New Jersey Supreme Court as representative of current jurisprudence.”

In answer to the argument that the impact rule was necessary in order to prevent fraudulent claims, the response generally has been that protection of such claims rests in the integrity of the judicial system and that the judiciary must find ways to solve problems, not avoid them. Falzone v. Busch, 45 N.J. 559, 214 A.2d 12, 16 (1965), gives a representative holding in this regard:

“As to the possibility of actions based on fictitious injuries, a court should not deny recovery for a type of wrong which may result in serious harm because some people may institute fraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the requirements as to the sufficiency of evidence, to safeguard against the danger that juries will find facts without legally adequate proof.”

In answer to the argument that permitting such claims would release the floodgates of litigation, experience in jurisdictions which abrogated the impact rule proved to the contrary. Okrina v. Midwestern Corporation, 282 Minn. 400, 165 N.W.2d. 259, 263 (1969); Note, Negligent Infliction of Mental Distress: Reaction to Dillon v. Legg in California and Other States, 25 Hastings L.J. 1248, 1250 (1974). Furthermore, numerous courts announced the proposition that any increase in litigation should not be determinative, but rather that it was the duty of the courts to afford a forum for the remedy of wrongs. Robb v. Pennsylvania Railroad Company, 58 Del. 454, 210 A.2d 709, 714 (1965), says typically, “if there be increased litigation, the courts must willingly cope with the task.”

The courts generally nevertheless continued to recognize some value in the basic policy underlying the classic rule. In order to accommodate those policy considerations while at the same time avoiding the old rigidity, increased emphasis was placed on the requirement of foreseeability and a new requirement was announced that the emotional distress or mental damage must cause and result in some physical injury. These two conditions of recovery were considered to be necessary as a voucher for the genuineness of the plaintiff’s claim.³

These requirements for recovery were included in the Restatement (Second) of Torts (1965). The foreseeability aspect is spelled out by § 313(1) as follows:

“If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor

(a) should have realized that his conduct involved an unreasonable risk of causing the distress . .. and

(b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.”

Comment c explains that, “[Ojne who unintentionally but negligently subjects another to such an emotional distress does not take the risk of any exceptional physical sensitiveness to emotion which the other may have unless the circumstances known to the actor should apprise him of it.... ”

This matter of foreseeability is expounded in 2 Harper & James, The Law of Torts, § 18.4, as follows: “Generally defendant’s standard of conduct is measured by the reactions to be expected of normal persons. Ordinarily he does not have the duty to be careful not to shock or frighten people. Activity may be geared to a workaday world rather than to the hypersensitive. ...”

The requirement that the emotional distress result in (although it need not be contemporaneously accompanied by) physical injury is set forth in Sections 436 and 436A of the Restatement. Section 436(1) states:

“If the actor’s conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.”

Section 436A states:

“If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.”

Comments b and c under that Section justify and explain the requirement of physical injury as follows:

“b. The reasons for the distinction, as they usually have been stated by the courts, have been three. One is that emotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of the trivial, and so falls within the maxim that the law does not concern itself with trifles. It is likely to be so temporary, so evanescent, and so relatively harmless and unimportant, that the task of compensating for it would unduly burden the courts and the defendants. The second is that in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all. The third is that where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good a purely mental disturbance.

“c. The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law.”

However, the evolution of the law on this subject did not stop with the adoption of the rules set forth in the Restatement. Further study made it apparent that the requirement of physical injury resulting from the emotional distress merely meant the replacement of one arbitrary, artificial rule with another which was only somewhat less restrictive. E.g., Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758 (1974); Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (banc 1980); Culbert v. Sampson’s Supermarkets Inc., 444 A.2d 433 (Me.1982). Also from a purely practical point of view, it was proving difficult if not impossible to separate physical injury from what was to be considered purely mental and emotional reaction. This problem had already been foreshadowed by Comment c to Section 436A of the Restatement, quoted above. See also the Annot., 64 A.L.R.2d 100 (1959) which stated in footnote 16 on page 115: “To refer to ‘mental distress alone’ in these cases is undoubtedly somewhat inaccurate, since, as noted supra, § 3, severe mental disturbance of the type here treated is always characterized by a complex of physical reactions, and frequently it is only an accident of pleading that the adverse consequences complained of are characterized as ‘mental’ rather than physical.”

The difficulty of a rule which attempts to distinguish between physical injury on the one hand from mental and emotional injury on the other is pointed up by a Missouri case, Todd v. Goostree, 493 S.W.2d 411 (Mo.App.1978), followed and implemented, 528 S.W.2d 470 (Mo.App.1975). In that ease, a workmen’s compensation claimant had been subjected to severe mental shock upon seeing a fellow worker crushed under the dump truck operated by the claimant. His claim was denied by the Industrial Commission on the ground that he was unable to show any injury to the “physical structure” of his body as required by the compensation statute. The denial of the award was reversed by the court of appeals on the ground that the broad objective of the Workmen’s Compensation Act could be effectively accomplished “only if the distinction between physical and mental injury— no longer tenable —is discarded.” (Emphasis added). The opinion went on to hold that the emotionally-induced neurosis was “violence to the physical structure of the body.”

So, both for logical and also practical reasons, a considerable number of jurisdictions came to discard the requirement that the emotional distress must in turn produce physical injury. At the same time, these courts acknowledged the need to avoid unduly extending liability to situations where the defendant’s acts constitute socially desirable activity and his blame is only slight, and these courts also agreed that recovery should not be extended to cases where the plaintiff has suffered only an inconsequential injury. To accomplish these objectives, the courts announcing the liberalized rule reemphasized the requirement that the injury must be foreseeable and added the requirement that the plaintiff’s injury must be serious in character. Cases announcing this liberalized point of view are: Molien v. Kaiser Foundation Hospitals, supra; Leong v. Takasaki, supra; Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Hume v. Bayer, 178 N.J.Super. 310, 428 A.2d 966 (1981); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Culbert v. Sampson’s Supermarkets Inc., supra; Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 398 A.2d 1180 (1978); Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981); Chappetta v. Bowman Transp., Inc., 415 So.2d 1019 (La.App.1982). Contra Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). Legal writing has expressed approval of this liberalization: Comment, Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U.Chi.L.Rev. 512 (1968); Nolan and Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hastings L.J. 583 (1982); Comment, Duty, Foreseeability, and the Negligent Infliction of Mental Distress, 33 Me.L. Rev. 303 (1981); Comment, Molien v. Kaiser Foundation Hospitals: California Expands Liability for Negligently Inflicted Emotional Distress, 33 Hastings L.J. 291 (1981).

A painstaking review of this whole subject has convinced this court that the time has come for Missouri to join the mainstream of Anglo-American jurisprudence by abandoning the classic impact rule. We are further of the opinion that logic and practicality argue in favor of avoiding any requirement that “physical injury” result from the emotional distress.

Instead of the old impact rule, a plaintiff will be permitted to recover for 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.⁴ Former decisions holding to the contrary are no longer to be followed.

III.

It remains now to apply these new principles to the facts of this case.

With respect to foreseeability, there is considerable question whether these defendants could anticipate that an ordinary person normally constituted would succumb to serious emotional distress by reason of being trapped in a stalled elevator. On the record as it presently stands it is problematical whether the plaintiff made a submissi-ble case on this question of foreseeability.⁵ There is, however, no need to make a decisive evaluation of the scant evidence presently before this court, because upon retrial plaintiff will have an opportunity to introduce further evidence with respect to this matter. Various kinds of proof can be visualized which would tend to show some substantial foreseeable likelihood that either physical or psychic harm might be caused to a person trapped in the elevator.⁶

Where a possibility of proof exists which the plaintiff has not fully developed, a remand rather than reversal is permissible. Stewart v. Brown, 546 S.W.2d 204 (Mo.App.1977); Household Finance Company, Inc. v. Watson, 522 S.W.2d 111 (Mo.App.1975); Bolhofner v. Jones, 482 S.W.2d 80 (Mo.App.1972); Franklin v. Farmers Mut. Ins. Co., 627 S.W.2d 110 (Mo.App.1982). This disposition of the appeal is especially called for in view of the new rules governing the subject matter which are newly announced in this opinion.

Of course, on the retrial defendants will have an opportunity to disprove any evidence offered by the plaintiff and also to persuade the jury that plaintiffs anxiety reaction was idiosyncratic and would not have occurred were it not for her currently pending divorce and the unfortunate stroke which her mother had recently suffered. All of this will basically be a question to be resolved by the usual judicial process of fact sifting and determination.

With respect to the issue of whether plaintiff’s damages were sufficiently severe so as to be legally cognizable, the unilateral evidence so far offered would be sufficient to warrant jury submission. Of course this element also will be subject to dispute by defendants on retrial and will be a matter for jury determination.

The judgment of dismissal is reversed and this cause is remanded for new trial.

RENDLEN, C.J., HIGGINS and GUNN, JJ., and SEILER, Senior Judge, concur. WELLIVER and DONNELLY, JJ., dissent in separate opinions filed. BILLINGS and BLACKMAR, JJ., not participating because not members of the Court when cause was submitted.

1 . Although plaintiff alleged ownership of the building by Nooney, she offered no evidence directly in support. Nooney did file a cross-claim against its co-defendant Otis, in which Nooney alleged a contract between it and Otis under which Otis undertook the maintenance of the elevator, and a copy of the maintenance agreement was attached to that pleading. No contention is being made by Nooney that it was not the owner and operator of the building at the time in question. On retrial, plaintiff will of course have an opportunity to supply direct evidence showing Nooney’s ownership.

2 . At another point in her testimony, plaintiff estimated that she boarded the elevator “at about quarter of eleven.”

3 . This opinion will not digress to discuss the extensive debate and differing rules which developed in the “bystander” cases, where a plaintiff suffers mental or emotional distress upon observing death or injury to a third party caused by a defendant’s negligence.

4 .This test responds to well considered suggestions by legal writers. So, the Comment, Negligently Infíicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237, 1254 (1971) states:

“The crucial burden upon plaintiff in all tort cases lies in proving actual medical harm to the degree required by the law. In the context of mental distress, however, this burden of proof is complicated because of varying legal interpretations given the term ‘mental distress.’ Problems created by this threshold burden can be resolved by defining mental distress as any traumatically induced reaction which is medically detrimental to the individual. Courts, however, must translate such a medical definition into a purely legal standard capable of resolving particular cases. By defining this new tort in terms of a duty to refrain from inflicting ‘severe’ mental distress, medical concepts can be used as the starting point for legal analysis while still providing for flexible legal development capable of accommodating changing public policy needs. Under this approach, the plaintiffs threshold burden of proving legal damage would be satisfied upon demonstration of any medically provable mental distress or harm. The trier of fact would then apply the severity standard in order to determine if the harm is legally sufficient to warrant compensation.”

Similarly, Comment, Negligence and the Infíiction of Emotional Harm: A Reappraisal of the Nervous Shock Cases, 35 U.Chi.L.Rev. 512, 517 (1968) states:

“The legal definition of ‘emotional harm’ largely determines the scope of emotional tort liability, a fact which traditional theory has implicitly recognized. A broad definition of ‘emotional harm’ — one which includes upset, anger, and grief — would make it easy to establish a ‘threshold tort.’ A very narrow definition — one which requires permanent emotional injury — would make it virtually impossible to establish the threshold tort, for psychic stimuli rarely if ever cause permanent damage in normal individuals. The difficulty of defining the ‘emotional harm’ necessary to establish a threshold tort in a way which produces results somewhere between the Scylla of unlimited liability and the Charybdis of no liability has probably been a primary factor in discouraging attempts to utilize the negligence approach in emotional injury cases.

“The necessary middle ground lies in a definition of ‘emotional harm’ which excludes mere upset, dismay, humiliation, grief, and anger. If one person’s careless conduct causes another to experience such emotions, this conduct has not harmed him in a way which justifies the imposition of liability. Even aside from the problem of unlimited liability, it is unreasonable to require that people act so carefully as to avoid occasionally angering or upsetting others, just as it is unreasonable to demand that one never accidentally jostle another in a crowd.

“What ‘harm,’ then, is necessary to support a threshold tort? One example is ‘shock’ — the sudden agitation of the mental senses which temporarily incapacitates the victim and requires at least minimum medical attention. Other examples are continuing nervousness, sleeplessness, or nausea for which a physician would prescribe medication. Beyond this threshold are the neuroses, resulting psychosomatic disabilities, and other more serious illnesses. ‘Harm,’ then, is mental distress serious enough to require medical attention.” (Emphasis added).

See also Comment, 33 Hastings L.J. 291, 309 (1981), and Comment c under Section 436A of Restatement (Second) of Torts, supra.

5 . The evidence shows that the man who first answered plaintiffs calls admonished her not to panic. This might be considered some slight evidence of a belief by an average person that a person trapped in an elevator might in fact panic and become emotionally overwrought.

6 . For example, the record does not disclose what maximum period of entrapment might reasonably be contemplated. While plaintiff here was released within a half hour to an hour, the method of release used would not have been possible had the elevator been much more than a foot from one of the floors. If the elevator had been further away than that, Faughn described the method of rescue as follows: “Then there’s a side emergency, side exit in these elevators, and either myself or someone familiar with the operation can run another elevator up alongside it and come through the emergency side exit of another elevator, open it up, take them through the side exit.” Nothing in the present record reflects how long such a rescue would take nor to what physical hazard the rescuee might be exposed.