Johnson v. Jamaica Hospital , 95 A.D.2d 598 ( 1983 )

OPINION OF THE COURT

Boyers, J.

In their complaint, plaintiffs seek money damages for severe emotional anguish suffered as a result of the disappearance of their nine-day-old daughter from the defendant hospital’s nursery, an event allegedly occasioned by the hospital’s negligence in its care and custody of their infant.

Following her birth on June 8, 1981, plaintiffs’ infant daughter, Kawana, remained in the care and custody of the defendant hospital for further treatment after her mother’s discharge from that institution on or about June 15, 1981.

When the mother visited the hospital nursery ward on June 16,1981, a day on which the institution had received two telephone bomb threats, she found that her nine-day-old infant was missing. Kawana had been kidnapped by an unrelated third party; she was recovered by the police department approximately four and one-half months later.

In their complaint, as amplified by a bill of particulars interposed prior to the time Kawana was recovered, plaintiffs allege two causes of action. First, they seek to recover money damages, inter alia, for the “grief, mental torment pain and anguish” they suffered, and for the plaintiff mother’s neurological and psychological injuries sustained as a consequence of their daughter’s disappearance, which, it is alleged, was the result of the negligence of the defendant hospital, and those in its employ. Their second cause of action is based upon the legal doctrine of res ipso loquitur. Justice Kunzeman at Special Term denied defendant hospital’s motion to dismiss the complaint for failure to state a cause of action. Circumscribing our decision within the narrow factual parameters delineated in the complaint, we hold that the plaintiffs have stated cognizable causes of action and therefore affirm.

Given the present posture of this case, we accept, as we must, the plaintiffs’ contentions as true (Becker v Schwartz, 46 NY2d 401, 408; Howard v Lecher, 42 NY2d 109, 112; Cohn v Lionel Corp., 21 NY2d 559, 560). Thus, we are required only to determine whether the plaintiffs state valid causes of action and need not reach the merits of their complaint.

We cannot agree with the distinguished dissenters that this case is analogous to those held to be within the so-called “bystander rule”, and that therefore, plaintiffs have no legal recourse for the psychic injuries complained of. Admittedly, in all negligence cases, liability is predicated upon the breach of a duty, which legal obligation is circumscribed by considerations not only of logic but also of policy (see De Angelis v Lutheran Med. Center, 58 NY2d 1053). Clearly, under the unique facts of this action, the defendant hospital, standing as it were in loco parentis, owed a direct duty to the plaintiffs to care for and protect their infant daughter whom they had left in its custody, and plaintiffs, as “direct victims” (see 25 ATLA L Rep 442) of the breach complained of, are possessed of a cognizable cause of action for their psychic injuries (cf. Kennedy v McKesson Co., 58 NY2d 500). Such a claim constitutes an exception to the general rule precluding recovery for negligently caused psychological trauma with ensuing emotional, rather than physical, consequences, because there exists, inter alla, “an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious” (Prosser, Torts [4th ed], § 54, p 330; see Johnson v State of New York, 37 NY2d 378; cf. Molien v Kaiser Foundation Hosps., 27 Cal 3d 916).

In Johnson v State of New York (supra, p 383), the Court of Appeals noted that a claim for emotional harm caused by a tortious act cannot stand absent the existence of a duty flowing directly from the negligent party to the injured party. This rule, that “no cause of action lies for unintended harm sustained by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether [or not] the one was an eyewitness to the incident” (Tobin v Grossman, 24 NY2d 609, 611), is based in part upon policy factors, one of which is the fear of infinite liability (Tobin v Grossman, supra, pp 616, 618).

In Tobin (supra, p 611), the plaintiff mother sought to recover for the emotional injuries she sustained as a result of shock and fear for her child occasioned by an accident which occurred within her hearing and her subsequent observation of the injured child. As the court observed, even “the eyewitness limitation provides no rational practical boundary for liability” for “whichever way one turns in permitting a theory of recovery one is entangled in the inevitable ramifications which will not stay defined or limited. There are too many factors and each too relative to permit creation of only a limited scope of liability or duty” (Tobin v Grossman, supra, pp 618-619). Thus, the New York rule precludes “bystanders” from recovering for the negligent infliction of emotional harm.

Contrary to the view of the dissenters, the dangers stressed by the Tobin court are conspicuously absent at bar and the facts are not analogous to that case. Tobin dealt with the general duty which we all have to refrain from negligently harming another. However, the duty at bar specifically flowed from the hospital to the plaintiff parents, who were the “direct victims” of the breach thereof (see, e.g., Johnson v State of New York, supra; cf. Holland v St. Paul Mercury Ins. Co., 135 So 2d 145 [La]).^* Such duty arose as a result of the defendant hospital’s continued custody of the infant for further treatment (cf. Rainnie v Community Mem. Hosp., 87 AD2d 707). Surely, the situation at bar is not one in which the parents were required to disregard the hospital’s request that their newborn remain for further treatment. Rather, because of their natural care and concern for Kawana, they consented to her remaining in the defendant’s nursery ward until such time as they were advised that their daughter was sufficiently well to be discharged.

It is evident that the risk of harm resulting from the hospital’s alleged negligent management of its nursery ward, which facilitated the kidnapping of the infant, was, in light of the parent-child relationship and the direct and certain emotional impact of such event, reasonably foreseeable to the defendant hospital whose allegedly tortious conduct may be considered to have proximately caused the injuries complained of (see Becker v Schwartz, supra, p 410). While the court in Tobin (supra, p 616) expressed the fear that permitting recovery by the parent in that case would escalate into the extension of recovery under similar circumstances by siblings, grandparents and others related to the injured child, such fear is untenable in the instant case, which is specifically limited upon its special facts and circumstances to the plaintiff parents who left their newborn in defendant hospital’s care. Thus, there is no need to establish arbitrary boundaries for liability. Our decision does not extend to other relatives and friends emotionally affected by news of the child’s disappearance. Likewise, our holding today is not intended to become a vehicle for litigation flowing from intrafamily disputes whereby, for example, a parent, in the throes of a custody battle, seeks damages from an educational institution for emotional injuries suffered when a child is taken from school grounds allegedly at the behest of the other parent. Where conduct is intentional, tort remedies, such as actions to recover damages instituted against an abductor (see Pickle v Page, 252 NY 474), or for wrongful interference with custodial relations (see Lisker v City of New York, 72 Misc 2d 85) are sufficient.

While it is true that the law cannot provide redress for every injury (Howard v Lecher, supra, p 111), as Dean Prosser has noted, where a direct duty has been breached and where “the mental distress is undoubtedly real and serious, there is no essential reason to deny recovery” (Prosser, Torts [4th ed], § 54, p 330). Moreover, it is apparent that this rationale was the common denominator in those cases which marked exceptions from the general rule denying recovery for the negligent infliction of emotional harm absent physical injury (Prosser, Torts [4th ed], § 54, p 330; see Kennedy v McKesson Co., 58 NY2d 500, 504-505, supra). Interestingly, one class of such particular cases permits recovery by survivors for emotional harm sustained as a result of a hospital’s mishandling of a dead body (see Darcy v Presbyterian Hosp., 202 NY 259), or the misinformation negligently given to a daughter that her mother had died (see Johnson v State of New York, supra). It would indeed be anomalous to permit recovery for emotional harm where a corpse is misplaced or mishandled by a hospital, or where such institution negligently informs a relative of the death of its patient, yet not allow recovery from an institution for its negligence in relation to a live infant whose parents were constrained to leave it there for observation and medical treatment. Indeed, it would appear that had the hospital negligently informed plaintiffs that their child had died or been abducted from the premises when, in fact, this was not so, plaintiffs would possess a cause of action under the principles enunciated in Johnson (supra); to not recognize an action cognizable at law where plaintiffs’ infant was actually taken would fashion an illogical result which the law cannot sanction.

The contention that the valid claim at bar should be denied on the basis of public policy considerations is unacceptable. As our Court of Appeals has observed in Battalla v State of New York (10 NY2d 237, 240-241): “[E]yen the public policy argument is subject to challenge. Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. 'The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one’ ”. Where circumstances such as those herein exist, public policy considerations inure to plaintiffs’ benefit, for indeed, little likelihood of either a proliferation of similar claims or a plethora of fraudulent allegations exists. There is unquestionably no doubt as to the genuineness of plaintiffs’ claim (see Johnson v State of New York, supra, pp 382, 384). One would indeed be hard pressed to argue that even the most emotionally stable of parents would suffer no mental anguish when their newborn baby is kidnapped — any other reaction would seem irrational and totally unnatural (Becker v Schwartz, 46 NY2d 401, 414, supra). As the court in Becker (supra, p 414) observed with regard to the reaction of the plaintiff in Johnson (supra), “[t]hat a daughter might receive such notice with mixed emotions lacks any rational basis in human experience”. Likewise, in the instant case, there exists a real and substantial likelihood of emotional injury to the plaintiffs and "not only justice but logic compels” that their complaint stand (Johnson v State of New York, supra, p 383).

Accordingly, for the reasons stated, Special Term’s order denying defendant’s motion to dismiss the complaint should be affirmed.

* In Holland v St. Paul Mercury Ins. Co. (135 So 2d 145, 157-158) the Louisiana Court of Appeal upheld a claim by the parents based on emotional injuries suffered as a result of the fear sustained when their son ingested rat poison which had been placed in their home by the defendant. The court found a direct duty running from the defendant to the parents based on a legal responsibility to properly identify the poison in order that the child could be treated properly.