Mental Pain & Suffering, Part 1
Under Oklahoma law there are two ways to recover for mental or emotional distress. One is as an item of damages in negligence, deceit, malicious prosecution and bad-faith insurance cases where the emotional distress flows naturally from the wrong. In such cases, the wrongful act may not be intentional or particularly despicable and the emotional distress need not be severe. The only requirements in negligence and deceit cases are that the distress be connected to a physical injury suffered by the plaintiffs themselves and it must either be a result of the physical injury or the cause of some physical manifestation in the plaintiffs.
The second way to claim emotional distress is as a separate cause of action – intentional infliction of emotional distress. In those cases, the wrongful act must be intentional and extremely outrageous, but be forewarned! It is very difficult to find acts sufficiently shocking or offensive in our society. The distress need not be accompanied by any physical ailment, but must be severe.
The present article is part one of a series discussing the two kinds of mental pain. As will be seen, it is much easier to recover for ordinary mental pain and suffering than it is to prove intentional infliction of emotional distress.
Ordinary mental pain and suffering naturally flowing from wrongs:
From the early 1900s, Oklahoma courts have held: “Mental pain and suffering, accompanying personal injury or physical pain, is always the subject of compensation. The mental anguish, however, should be connected with the bodily injury, and be fairly and reasonably the natural consequence that flows from it. … In such circumstances, direct testimony of mental anguish and suffering, while proper, is not indispensable to a recovery therefor. Damages of this nature are ordinarily determined by the circumstances of the case, as disclosed by the evidence; the amount thereof depending upon the seriousness of the injury.” Muskogee Elec. Traction Co. v. Rye, 1915 OK 170, 148 P. 100, 103 (injuries in fall from streetcar). Such mental pain “… is necessarily a part of the physical suffering and injury, and is inseparable therefrom”. St. Louis & S.F. Ry. Co. v. Keiffer, 1915 OK 381, 150 P. 1026 (man’s anguish not compensable when train was not on time to transport his brother to Texas for an operation); see also, City of Ada v. Smith, 1917 OK 492, 175 P. 924 (mental pain from injuries suffered by fall in sink hole may be recovered); Muskogee Electric Traction Co. v. Wimmer. 1920 OK 26, 194 P. 107, 108 (suffering of loss of eye compensable). Personal-injury damages include both physical and mental pain, past and future. OUJI-CIV 3d No. 4.1. The damages may be temporary or permanent. An example of recovery allowed for a temporary condition involved a product that caused hair damage, even though the hair grew back without problems in a short time. “… [H]air is as much a part of the human body as the finger nails and the body’s natural appendages. No one would contend that a finger nail is not a part of a person’s physical entity, or that the breaking, cutting or removal of one, even if unaccompanied by physical pain, suffering, or trauma, is not in the nature of a physical injury.” John A. Brown Company v. Shelton, 1963 OK 239, 391 P.2d 259, 263. The plaintiff was therefore “… not barred from recovering special damages for shame, embarrassment and humiliation …” Id.
Damages stemming from negligence:
As noted in Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, 916 P.2d 241, 244 (f.n. 1): “Unlike a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress is not an independent tort.” The mental pain and suffering are elements of damages from a negligent act. Duty: Recovery of mental anguish damages in negligence cases depends on proof of the elements of the underlying action, including duty and breach of duty. Therefore, in Mason v. State ex rel. Bd. of Regents of University of Oklahoma, 2001 OK CIV APP 33, 23 P.3d 964, 969, since the university did not owe a duty to an expelled student, no negligent infliction of emotional distress damages were available (and, as a matter of law, OU did not exhibit outrageous conduct that would be a basis for intentional infliction of emotional distress). Foreseeability: Another requirement of negligence is foreseeability. “Emotional distress is undoubtedly a natural and probable consequence of purchasing and living in a home which, unbeknownst to the purchaser, has been extensively damaged by termites and has extensive live infestation of termites.” Cleveland v. Dyn-A-Mite Pest Control, Inc., 2002 OK CIV APP 95, 57 P.3d 119. But, in McMeakin v. Roofing and Sheet Metal Supply Co. of Tulsa, 1990 OK CIV APP 101, 807 P.2d 288, 291, a homeowner could not recover damages for a heart attack suffered a month after his house collapsed due to the alleged negligence of a roofing contractor. He was neither injured in the collapse nor “… could reasonably have been in fear of personal physical injury to himself.” Id.
An essential requirement for recovery of negligent infliction of emotional distress in negligence and deceit cases is that it be “connected” with some physical injury. For example, hunger and lack of sleep were sufficient physical injuries to support mental pain and suffering of a woman traveling with young niece who was mistakenly routed to the wrong town and stranded in a railroad station for 24 hours. Thompson v. Minnis, 1949 OK 29, 202 P.2d 981, 982. In Guyer v. Hugo Pub. Co., 1991 OK CIV APP 121, 830 P.2d 1393, 1394-95, a mother could recover for emotional distress with injuries she suffered in a miscarriage. In Belt v. St. Louis-San Francisco Ry. Co., 195 F.2d 241, 243 (10th Cir. 1952), a victim injured by a train had a second train pass by while he was lying next to the tracks. The court found shock from passage of the second train was a compensable injury and not a mere mental or emotional disturbance. The court explained: “Oklahoma courts are committed to the rule that ‘No recovery can be had for mental pain and anguish, which is not produced by, connected with, or the result of, some physical suffering or injury, to the person enduring the mental anguish.’ … In other words, Oklahoma law does not compensate for mental anguish or disturbance alone — it must be a part of the physical suffering and inseparable therefrom, as w[h]ere the mental anguish is superinduced by physical hunger pains. … The courts generally draw a line between the purely physiological and the psychological, the corporeal and the psychical. … And, the majority of the courts compensate for bodily injuries produced by or resulting from mental disturbances, although unaccompanied by any physical impact or concussion. In such cases, the right to recover is dependent upon the nature of the results rather than the nature of the tortious conduct. …” Id. Mental suffering is natural when plaintiffs find contaminants in food. See, Obieli v. Campbell Soup Co., 623 F.2d 668, 669-70 (10th Cir. 1980) (plaintiff sickened from seeing insect in soup he had eaten). In Ellington v. Coca Cola Bottling Co. of Tulsa, Inc., 1986 OK 11, 717 P.2d 109, 111, recovery was allowed when the plaintiff became ill on seeing a foreign object she thought was a worm (but was actually Good & Plenty candy) in the Coca Cola she had been drinking. “…[R]ecovery may be had for mental suffering where it is connected with physical suffering. … [T]he rule requires a connection only and does not require the physical injury to precede the mental anguish.” Id. “Thus, here the fact that plaintiff’s physical injury was induced by the emotional shock of finding the foreign substance in her drink is not fatal to her recovery — the mental pain and anguish was connected with physical suffering and injury as required in the jurisdiction …” Id.
After Ellington’s pronouncement that physical injury need not precede the anguish, the holding in Cushing Coca-Cola Bottling Co. v. Francis, 1952 OK 221, 245 P.2d 84, 85 (also a mouse-in-a-bottle case), is no longer valid. Cushing required the mental reaction to follow and result from the physical injury.
In Richardson v. J. C. Penney Co., Inc., 1982 OK CIV APP 35, 649 P.2d 565, a husband with no previous stomach problems could claim damages for a bleeding ulcer if he could prove it developed from stress he suffered when brakes repaired by the defendant failed. Id. at 567. The court recognized, “Modern psychology and medicine recognize the impact of unseen emotional or mental stresses on one’s physical body. … [T]he law in Oklahoma demands some measure of tangible physical manifestation of damage — a broken limb or even the pain of hunger would suffice.” Id. at 566. The wife in Richardson, however, alleged no physical manifestations of the distress she felt and therefore could not recover. Id. at 567.
No bystander recovery in Oklahoma:
A physical injury must be inflicted on the plaintiff personally in order to recover the resultant mental pain. For example, in Thompson, 202 P.2d at 982, the mother of the child stranded at the train station purchased the ticket, but did not accompany the aunt and child. Since she did not suffer physically, she was not entitled to damages for her emotional distress over the situation. As the court explained, “The general rule, stated in 15 Am.Jur. 597, 598, is as follows: ‘In law mental anguish is restricted, as a rule, to such mental pain or suffering as arises from an injury or wrong to the person himself, as distinguished from that form of mental suffering which is the accompaniment of sympathy or sorrow for another’s suffering or which arises from a contemplation of wrongs committed on the person of another. Pursuant to the rule stated, a husband or wife cannot recover for mental suffering caused by his or her sympathy for the other’s suffering. Nor can a parent recover for mental distress and anxiety on account of physical injury sustained by a child or for anxiety for the safety of his child placed in peril by the negligence of another.’” Id. at 985. In Slaton v. Vansickle, 1994 OK 39, 872 P.2d 929, the plaintiff sued under warranty and products liability theories for the emotional distress he suffered upon learning his gun had accidentally discharged and killed a young woman. “His injury came about only after learning the gun’s accidental discharge had caused a death, not, because he was injured from the discharge.” Id. at 931. The court specifically declined to adopt the bystander theory. The rule “… long recognized in Oklahoma [is] recovery for mental anguish is restricted to such mental pain or suffering as arises from an injury or wrong to the person rather than from another’s suffering or wrongs committed against another person.” Id. “As we have pointed out, however, what damages if any Vansickle could have proven, he still cannot show his injury resulted from a wrong to him which was essential in order to recover his damages under either of these theories as well. Rather, his injury resulted from the wrong done to another.” Id. at 931-932. In Van Hoy v. Oklahoma Coca-Cola Bottling Co., 1951 OK 231, 235 P.2d 948, the plaintiff could not recover when he gave a soft drink containing a decaying mouse to a co-worker. A father could not recover damages for his mental pain occasioned by the mutilation of the body of his dead daughter. Nail v. McCullough & Lee, 1923 OK 102, 212 P. 981 (syllabus). “… [M]ental anguish of itself cannot be treated as an independent ground of damages so as to enable a person to maintain an action for that injury alone …” Id. at 982. But see, Brady v. Criswell Funeral Home, Inc., 1996 OK CIV APP 1, 916 P.2d 269, 271, in which the plaintiff alleged intentional infliction of emotional distress, but the court analyzed the case as one of mental distress naturally flowing from negligence. The court held a funeral home had a duty to stop a cremation upon learning that one of the children of the decedent objected. The daughter presented “… at least minimal evidence of physical symptoms”. Id. “Although a plaintiff may not recover for mental anguish alone in a negligence case, if there is some physical suffering connected therewith, the mental anguish may be recovered for.” Id. In Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, 916 P.2d 241, 246, an exception was made when the plaintiff was not just a bystander, but a direct victim actually injured in the accident and the spouse of another victim. (Kraszewski involved negligence of a drunk driver, but was analyzed as intentional infliction of emotional distress, although the result should be the same if the tortfeasor were merely negligent.)
The bottom line: Negligent infliction of mental distress can be claimed any time it is a natural result of a wrong and the plaintiffs personally suffered physical symptoms in connection with the mental pain. Stay tuned for Part 2 and more instances that may ordinarily result in damages for emotional distress.
–Lynn B. Mares