Waube v. Warrington

Supreme Court of Wisconsin · Torts

TortsNegligenceEmotional distressWrongful deathDutynegligent infliction of emotional distressdutyzone of danger

Facts

The decedent, Susie Waube, was looking out the window of her house watching her child cross the highway when she witnessed the defendant negligently kill the child. Susie herself was not put in peril and was not in fear of physical impact to her own person. The complaint sought recovery for her death based on physical injuries allegedly caused by the shock or fright of witnessing her child's death. Her husband sought recovery under Wisconsin's wrongful death statute, which required that Susie herself would have had a cause of action had she lived.

Issue

May the mother of a child, who is herself outside any risk of physical impact, recover for physical injuries caused by fright or shock from witnessing the defendant negligently kill her child? Relatedly, does Wisconsin wrongful death law permit the husband to recover for her death if she would not have had such a claim herself?

Rule

Negligence is actionable only when it invades a legally protected interest of the plaintiff through breach of a duty owed to that plaintiff. In cases of fright or shock without impact, recovery for resulting physical injury is recognized only where the plaintiff was within the field of ordinary physical peril to herself; no duty extends to one outside that field who suffers emotional shock from the injury or peril of a third person.

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

In Milwaukee, Dana Ortiz stood on the front steps of her duplex while her son rode his scooter across the street. A delivery van negligently sped through the intersection and struck the child. Dana was never in the van’s path, but the shock caused a heart episode and lasting bodily illness.

If Dana sues the driver for negligence for her own physical injuries caused by shock, which is the best result?

Explanation. The majority treats the issue as one of duty, not mere proximate cause. Recovery for fright or shock without impact is recognized only when the plaintiff herself was within the field of ordinary physical peril. Because Dana was outside personal danger and her shock arose from injury to her child, no legally protected interest of hers was invaded.