Sell v. Mary Lanning Memorial Hospital Ass'n

498 N.W.2d 522, 243 Neb. 266, 1993 Neb. LEXIS 131
CourtNebraska Supreme Court
DecidedApril 16, 1993
DocketS-90-980
StatusPublished
Cited by26 cases

This text of 498 N.W.2d 522 (Sell v. Mary Lanning Memorial Hospital Ass'n) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sell v. Mary Lanning Memorial Hospital Ass'n, 498 N.W.2d 522, 243 Neb. 266, 1993 Neb. LEXIS 131 (Neb. 1993).

Opinions

Per Curiam.

Joyce Sell, plaintiff, brought an action against Mary Lanning Memorial Hospital Association (Hospital) for negligent infliction of emotional distress. The petition sought recovery for injuries sustained by plaintiff after the Hospital had mistakenly advised her that her son had died from injuries he sustained in an accident. The case was tried in the district court for Adams County, where the jury returned a verdict for plaintiff in the amount of $15,000. The Hospital timely appealed to this court.

BACKGROUND

The record shows that during the late evening of June 13, 1987, Scott Sell and Jon Stones, both then 17 years old, were critically injured when the motorcycle they were riding collided with an automobile. Both Scott Sell and Jon Stones were thereafter taken by ambulance to the emergency room of the [268]*268Hospital, where they arrived shortly after midnight on June 14. Jon Stones was pronounced dead at the Hospital at 1:10 a.m.

Wayne Kimminau, a friend of the boys’, was at the emergency room when the ambulance arrived and gave the Hospital’s personnel the names of the boys and the names and addresses of their parents. There is some dispute as to whether Kimminau also identified the boys themselves for the Hospital’s personnel.

Plaintiff, who is the mother of Scott Sell, and the rest of Scott Sell’s immediate family arrived at the Hospital at approximately 1 a.m. At 1:30, the emergency room physician, Dr. Lawrence Banta, advised them that Scott Sell had died at 1:10 as a result of injuries suffered in the accident. The identification of the decedent had been provided to Dr. Banta by an emergency room nurse. Dr. Banta thereafter asked the Sells if they wished to view the body, but they declined to do so and went home instead.

Plaintiff and her family began making burial arrangements the next day, Sunday, including selecting a casket and taking Scott Sell’s clothes and graduation picture to the mortuary. On Monday, the Sells chose a burial plot at the cemetery and selected the flower arrangements for the funeral. The Sells then went to the mortuary Monday afternoon to finalize the burial arrangements. Upon their arrival, the mortician asked plaintiff and her husband to view the body of their son. When the casket was opened, plaintiff and her husband saw the body of Jon Stones.

Plaintiff and her family immediately proceeded to the Hospital, where they demanded to see the patient in the intensive care unit. Lt. Stephen Murphy of the Hastings Police Department met the family in the lobby and directed them into a conference room while the patient in the intensive care unit was identified. All during these events, Jean Stones, the mother of Jon Stones, and her father, Charles Theesen, had kept a 24-hour vigil at the bedside of the patient in intensive care, believing it to be Jon Stones. After the Sells arrived at the Hospital, a positive identification was made, identifying the boy in intensive care as their son, Scott Sell.

[269]*269ASSIGNMENTS OF ERROR

The Hospital assigns four errors, contending that the trial court: (1) erred in failing to hold as a matter of law that plaintiff did not establish a prima facie case of negligent infliction of emotional distress, and, thus, it was error to overrule the Hospital’s motion for a directed verdict; (2) erred in not giving the jury a superseding/intervening instruction when requested to do so by the Hospital when the evidence clearly supported one; (3) erred in submitting instructions on the elements of a cause of action for negligent infliction of emotional distress, on proximate cause, and on damages when there was no evidence to support the giving of such instructions; and (4) erred in overruling the Hospital’s motion for new trial or, in the alternative, its motion for a judgment notwithstanding the verdict.

STANDARD OF REVIEW

A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. Schleich v. Archbishop Bergan Mercy Hosp., 241 Neb. 765, 491 N.W.2d 307 (1992); Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 231 Neb. 288, 436 N.W.2d 151 (1989). In reviewing the action of a trial court, we must treat the defendant’s motion for a directed verdict as an admission of the truth of all competent evidence submitted on behalf of the plaintiff. Such being the case, the plaintiff is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Five Points Bank v. Scoular-Bishop Grain Co., 217 Neb. 677, 350 N.W.2d 549 (1984); B. E. Implement Co. v. Valley Farm, 216 Neb. 269, 343 N.W.2d 892 (1984).

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The Hospital first contends that plaintiff failed to establish a prima facie cause of action for negligent infliction of emotional distress. We agree, but not for the reasons cited by the Hospital.

The Hospital relies on James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985), where this court abolished the strict “zone [270]*270of danger” requirement, adopting instead the “bystander recovery” test. Under this approach, a plaintiff bystander can recover for negligently inflicted suffering resulting from the plaintiff’s concern for the safety of another if (1) there was a marital or intimate familial relationship between the plaintiff and the victim and (2) the plaintiff’s emotional trauma resulted from either death or serious injury to the victim. If this were the only avenue for an action for negligent infliction of emotional distress, the Hospital’s contentions would be correct. Plaintiff’s son did not suffer serious injury or death due to the Hospital’s negligence.

However, in three recent cases we have demonstrated a willingness to recognize a cause of action for negligent infliction of emotional distress by a “direct victim” of a defendant’s negligence. In the first of these cases, Turek v. St. Elizabeth Comm. Health Ctr. 241 Neb. 467, 488 N.W.2d 567 (1992), the plaintiff brought an action against a hospital for negligent infliction of emotional distress. The plaintiff claimed that he suffered emotional distress after learning that while he was in the hospital he had received treatment from a nurse not licensed to administer such treatment. We affirmed the trial court’s dismissal of the case upon a finding that there was no negligence by the defendant hospital which would support such an action.

In Schleich v. Archbishop Bergan Mercy Hosp., 241 Neb. 765, 491 N.W.2d 307 (1992), decided shortly after Turek,

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Cite This Page — Counsel Stack

Bluebook (online)
498 N.W.2d 522, 243 Neb. 266, 1993 Neb. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sell-v-mary-lanning-memorial-hospital-assn-neb-1993.