Appeal by plaintiff from Braswell, Judge. Judgment entered 9 March 1981 in Superior Court, Durham County. Heard in the Court of Appeals 9 March 1982.
Martin (Harry C.), Judge. Judges Martin (Robert M.) and Whichard concur.
The sole issue raised on this appeal is whether summary judgment was appropriate. This in turn involves the question of defendants' liability for the mental distress and consequent physical injuries plaintiff suffered as a result of defendants' negligence. Defendants focus their argument upon a single element of actionable negligence -- foreseeability, and we are thus drawn into this most basic, yet amorphous and complex, area of tort law in order to resolve the issue presented.
Our analysis will be two-fold. By way of foundation, it will be necessary to review the position our courts have taken in deciding cases which have turned on this issue. The second stage in our analysis will lead us to a consideration of the special rules which have evolved from emotional distress cases, particularly those involving emotional distress resulting in physical injury. Our review of emotional distress cases and commentary thereupon leads us to agree that the law in this area "is in an almost unparalleled state of confusion and any attempt at a consistent exegesis of the authorities is likely to break down in embarrassed perplexity." 64 A.L.R. 2d 103 (1959). We hasten to add, however, that our courts have "decided cases in this category strictly upon the facts as presented without adopting inflexible rules." Williamson v. Bennett, 251 N.C. 498, 506, 112 S.E.2d 48, 54 (1960).
Under our general rules of negligence, a tort-feasor is liable if, by the exercise of reasonable care, he might have foreseen that some injury would result from his conduct or that consequences of a generally injurious nature might have been expected. Slaughter v. Slaughter, 264 N.C. 732, 142 S.E.2d 683 (1965). "A tort-feasor is liable to the injured party for all of the consequences which are the natural and direct result of his conduct although he was not able to have anticipated the peculiar consequence that did ensue." Lockwood v. McCaskill, 262 N.C. 663, 670, 138 S.E.2d 541, 547 (1964). "It does not matter that [the particular consequences] are unusual, unexpected, unforeseen, and unforeseeable." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 351, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting).
A tort-feasor's liability, however, is further governed by the element of causation. "The damages must be so connected with
the negligence that the latter may be said to be the proximate cause of the former." Id. In his dissenting opinion in Palsgraf, Judge Andrews speaks of proximate cause in the following terms: "[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point." Id. at 352, 162 N.E. at 103.
Foreseeability is only one element of proximate cause, which includes other equally important considerations: whether the cause is, in the usual judgment of mankind, likely to produce the result; whether the relationship between cause and effect is too attenuated; whether there is a direct connection without intervening causes; whether the cause was a substantial factor in bringing about the result; and whether there was a natural and continuous sequence between the cause and the result. See id.
The causation element in any negligence action raises questions of fact and is thus most appropriately reserved for jury determination. Summary judgment can only be granted in those cases where reasonable men cannot differ on the issues of negligence and proximate cause. It is usually for the jury to say what was the proximate cause of the aggrieved party's injuries. Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, cert. denied, 279 N.C. 395 (1971).
Defendants in the case sub judice have offered, however, a convincing argument in support of their position that, as a matter of law, they are not liable for plaintiff's injuries. We are cited to special rules applicable to cases involving the negligent infliction of emotional distress. Whereas "[t]here is almost universal agreement upon liability beyond the risk, for quite unforeseeable consequences, when they follow an impact upon the person of the plaintiff," in the absence of contemporaneous injury, recovery has been less certain. W. Prosser, Handbook of the Law of Torts § 50 at 300 (3d ed. 1964).
We are not here concerned with an effort to recover for mere fright caused by ordinary negligence. McDowell v. Davis, 33 N.C. App. 529, 235 S.E.2d 896, cert. denied, 293 N.C. 360 (1977); nor are we concerned with the issue of whether plaintiff's subsequent injuries might properly be viewed as "physical," Craven v. Chambers, 56 N.C. App. 151, 287 ...