Zeno-Ethridge v. Comcast Corp.

315 A.3d 978

2024 VT 16

Jennifer ZENO-ETHRIDGE and Dennis Ethridge

v.COMCAST CORPORATION, et al.

No. 23-AP-086

Supreme Court of Vermont.

October Term, 2023

March 22, 2024

On Appeal from Superior Court, Addison Unit, Civil Division, Mary Miles Teachout, J. (Ret.)

William H. Meub and Andrew J. Snow of Meub Associates, PLC, Rutland, for Plaintiffs-Appellants.

Richard Windish and Elizabeth Willhite of Primmer, Piper, Eggleston & Cramer, Woodstock, for Defendants-Appellees Comcast Corporation, Comcast of Connecticut/Georgia/Massachusetts/ New Hampshire/New York/North Carolina/Virginia/Vermont, LLC, and Eustis Cable Enterprises, LTD.

Lawrence H. Behrens of Law Offices of Thomas M. Franco, Boston, Massachusetts, for Appellees Green Mountain Flagging, LLC, and Green Mtn. Concert Services, d/b/a Green Mountain Flagging.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

EATON, J.

¶ 1. Plaintiff Jennifer Zeno-Ethridge appeals the trial court’s grant of summary judgment in favor of defendants Comcast Corporation, Eustis Cable, and Green Mountain Flagging on claims of negligent infliction of emotional distress and negligence. Plaintiff’s husband David Ethridge appeals the trial court’s grant of summary judgment on his loss-of-consortium claim.¹ Plaintiff argues that we should modify the "physical impact" requirement for emotional distress claims and asserts that the evidence presented sufficiently supports her claims. We affirm.

¶ 2. The relevant facts of this appeal are undisputed. In March 2016, plaintiff was driving southbound on Route 7. At that time, Eustis Cable workers were installing utility cables on Route 7 in Middlebury on behalf of Comcast Corporation. A Eustis Cable utility truck was parked on the side of the road, and Eustis Cable workers were being assisted by flaggers from Green Mountain Flagging. As plaintiff drove past the site, she noticed the utility truck moving in reverse towards a flagger. She then saw the flagger get pulled down and sucked under the truck. Sensing his imminent danger, she drove her car behind the truck in an attempt to prevent the truck from continuing to back up. When she stopped her car and put it in park, she was about one car length behind the track, which by then had stopped moving. She was in no danger herself. After the track had stopped, she got out of her car and rushed toward the scene. By the time she reached the truck, however, it was too late. The flagger’s skull had been crushed and his body mutilated underneath the truck.² Plaintiff approached the cab of the track and told the driver not to get out because of the gruesomeness of the scene. As she did so, blood and brain matter from the flagger got onto her pants and shoes. Plaintiff then went back to her car to get a blanket to cover the flagger’s body.

¶ 3. Five months after the incident, plaintiff was diagnosed with post-traumatic stress disorder (PTSD) and depression. She had previously been treated for depression but had no prior history of PTSD.

¶ 4. Plaintiff and husband sued defendants based on three common-law tort claims: negligent infliction of emotional distress (NIED), negligence, and loss of consortium. Defendants moved for summary judgment on all three claims, arguing that the facts did not support the required elements of the claims. The trial court agreed. Specifically, the trial court determined that plaintiff’s contact with the blood and brain matter alone was not a "physical impact from external force," as required for a prima facie NIED claim. The trial court also concluded that plaintiff failed to provide sufficient evidence of an "actual injury," as required for a prima facie negligence claim, because her sole alleged injury was a PTSD diagnosis. The court concluded that actions to recover for emotional injuries fall under the torts of intentional or negligent infliction of emotional distress, not negligence. Because these claims both failed, the trial court also dismissed husband’s derivative loss-of-consortium claim. Plaintiff and husband appeal, arguing that the trial court’s grant of summary judgment in favor of defendants was in error.

I. Standard of Review

[1–3] ¶ 5. We review a trial court’s grant of summary judgment de novo. Gordon v. Bd. of Civ. Auth. for Town of Morristown, 2006 VT 94, ¶ 4, 180 Vt. 299, 910 A.2d 836. We apply the same standard as the trial court, under Vermont Rule of Civil Procedure 56(a), to determine "whether there are genuine issues of material fact and, if not, whether the moving part[ties are] entitled to judgment as a matter of law." Carr v. Peerless Ins. Co., 168 Vt. 465, 466, 724 A.2d 454, 455 (1998). We draw all reasonable inferences in the light most favorable to the nonmoving parties. Buxton v. Springfield Lodge No. 679, Loyal Ord. of Moose, Inc., 2014 VT 52, ¶ 2, 196 Vt. 486, 99 A.3d 171.

II. Negligent Infliction of Emotional Distress

[4] ¶ 6. This Court addressed the necessary elements for a prima facie case of NIED in Brueckner v. Norwich University, 169 Vt. 118, 730 A.2d 1086 (1999). There, we stated:

To establish a claim for negligent infliction of emotional distress, a plaintiff must make a threshold showing that he or someone close to him faced physical peril. The prerequisites for establishing a claim differ according to whether plaintiff suffered a physical impact from an external force. If there has been an impact, [the] plaintiff may recover for emotional distress stemming from the incident during which the impact occurred. If plaintiff has not suffered an impact, plaintiff must show that: (1) he was within the "zone of danger" of an act negligently directed at him by defendant, (2) he was subjected to a reasonable fear of immediate personal injury, and (3) he in fact suffered substantial bodily injury or illness as a result.

Id. at 125, 730 A.2d at 1092 (citations omitted); see In re Montagne, 425 B.R. 111, 129 (Bankr. D. Vt. 2009) (summarizing elements of NIED under Vermont law).³

We thus generally limit recovery for emotional harm to cases with concurrent physical harms. See Vincent v. DeVries, 2013 VT 34, ¶ 25, 193 Vt. 574, 72 A.3d 886 ("[T]he general rule disallow[s] … emotional distress damages in the absence of … [a] physical impact."); Nichols v. Cent. Vt. Ry., 94 Vt. 14, 18, 109 A. 905, 907 (1919) ("[T]here can be no recovery for mental suffering where there is no attendant physical injury.").⁴

A. Physical-Impact Requirement

[5, 6] ¶ 7. Plaintiff first argues that this Court should eliminate the established "physical impact" limitation in favor of a "Negligence Plus" standard. Under this proposed standard, any severe mental harm would be actionable even without the concurrent physical impact our common law has long required. It is well settled that we are "not a slavish adherent to … stare decisis" and can amend the common law "should we deem it appropriate to do so." Ferry v. City of Montpelier, 2023 VT 4, ¶ 40, 217 Vt. —, 296 A.3d 749 (quotation omitted); Hay v. Med. Ctr. Hosp. of Vt, 145 Vt. 533, 536-37, 496 A.2d 939, 941 (1985). It is appropriate only when there is "plain justification" based on "our community’s ever-evolving circumstances and experiences." State v. Carrolton, 2011 VT 131, ¶ 15, 191 Vt. 68, 39 A.3d 705; Ferry, 2023 VT 4, ¶ 40, 296 A.3d 749.

[7, 8] ¶ 8. When a party is not in a zone of danger, requiring a physical impact as part of an NIED claim is a "well-established, and almost universally embraced" aspect of the common law. Vincent, 2013 VT 34, ¶ 15, 193 Vt. 574, 72 A.3d 886. This requirement has existed for well over a century, see Nichols, 94 Vt. at 18, 109 A. at 907, and has since been developed, reexamined, and affirmed as recently as 2013, see Vincent, 2013 VT 34, ¶ 25, 193 Vt. 574, 72 A.3d 886. It recognizes, in short, that there must be some limit on recovery for emotional harms. See Nichols, 94 Vt. at 18, 109 A. at 907. We acknowledge the gruesome nature of this incident, and its effect on plaintiff, but decline to eliminate the longstanding physical-impact requirement because three main policy considerations that have long supported it remain relevant today. See Ferry, 2023 VT 4, ¶ 40, 296 A.3d 749 (requiring "plain justification" to amend common law and declining to do so where no such showing has been made); Carrolton, 2011 VT 131 ¶ 15, 191 Vt. 68, 39 A.3d 705 (similar).⁵ Although we do not imply that these policy justifications wholly apply to the facts of this case, removing the physical-impact requirement entirely, as plaintiff seeks, would expand the scope of future claims without a reasonable limitation.

[9] ¶ 9. First, because mental or emotional injuries are often an unforeseeable result, the physical-impact requirement avoids holding defendants liable for unforeseeable harms. See Vincent, 2013 VT 34, ¶¶ 14-16, 193 Vt. 574, 72 A.3d 886 (noting potential unforeseeability of mental injuries). Foreseeability is an important consideration in tort law because, if the risk of harm is unforeseeable, potential tortfeasors cannot tailor their behavior to avoid those harms. See Clymer v. Webster, 156 Vt. 614, 632, 596 A.2d 905, 916 (1991) ("[W]hether [a potential tortfeasor] has a duty … often depends on the foreseeability of [the] consequences."). In "the absence of a physical … injury," emotional harms are often "not readily foreseeable as [the] natural … consequence[ ] of the defendant’s negligent conduct." Rickey v. Chicago Transit Auth., 101 Ill.App.3d 439, 57 Ill.Dec. 46, 428 N.E.2d 596, 598 (1981), aff’d and remanded, 98 Ill.2d 546, 75 Ill. Dec. 211, 457 N.E.2d 1 (1983). Instead, emotional injuries often "depend on psychological factors" that make some plaintiffs more susceptible to emotional harms. Butler v. Burlington N., 119 S.W.3d 620, 624-25 (Mo. Ct. App. 2003) (quotation omitted)). These psychological factors are not "ordinarily … apparent" to defendants, making emotional injuries inherently unforeseeable and "more difficult [for defendants] to predict." Id.; see Lawson v. Mgmt....