Palmer v. Nan King Restaurant

New Hampshire Supreme Court · Torts

TortsNegligenceEmotional DistressProducts LiabilityBreach of Warrantynegligent infliction of emotional distressphysical manifestationphysical injury

Facts

The plaintiff bought take-out food from the defendant restaurant and, while eating it, bit into a used band-aid. She experienced revulsion and extreme anxiety that she might have contracted an infectious disease. Several days later, she saw her doctor, who told her infection was highly unlikely; she tested negative for HIV and hepatitis, and her doctor described her as anxious and emotionally distraught. She made no additional claim of physical injury.

Issue

May a plaintiff recover for emotional distress under a traditional negligence theory when she suffered no physical injury or objectively verifiable physical symptoms from that distress, even though there was physical impact from biting into a used band-aid? Also, was summary judgment proper on the products liability and breach of warranty claims?

Rule

Under New Hampshire law, before a plaintiff can recover damages for emotional distress pursuant to a negligence cause of action, the plaintiff must prove that physical injury resulted from the distress. Physical impact alone does not eliminate that requirement where the plaintiff does not claim personal injury. A products liability claim based on the defendant's negligence requires proof of the underlying negligence elements.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, Elena Ruiz bought a sealed salad from Harbor View Cafe. While chewing, she discovered a blood-stained adhesive strip in the salad and became terrified that she had been exposed to disease; tests later came back negative, and her physician documented anxiety and emotional upset but no bodily symptoms or injury.

If Elena sues the cafe under a traditional negligence theory seeking damages only for emotional distress, what is the most likely result?

Explanation. Under the majority rule, a plaintiff seeking emotional-distress damages under a traditional negligence theory must prove that physical injury resulted from the distress, or at least objectively verifiable physical symptoms. Physical impact alone does not satisfy that requirement when the plaintiff does not claim personal injury. A doctor's confirmation of sincere anxiety is still insufficient without additional physical manifestation. (Derived from Palmer v. Nan King Restaurant (n.d.).)