Karla Westcott appeals a partial summary judgment dismissing her claim for negligent infliction of emotional injuries sustained during the delivery of her son, who was asphyxiated as a result of the umbilical cord being wrapped twice around his neck.
In reviewing a trial court's grant of summary judgment, this court must apply the standards set forth in sec. 802.08(2), Stats., in the same manner as the trial
Garrett acknowledged the right of a teenage girl, Connie Garrett, to pursue a claim for emotional distress sustained when she witnessed her younger brother run over by a police car, driven without lights at night, in pursuit of a group of children on the premises of an outdoor theater. Connie was not within the field of danger, never fearing for her own safety, as she leaned against a fence fifteen or twenty feet from where her brother was lying on a blanket near a gravel driveway at the time of the accident. The majority opinion focused on the fact that "Connie Garrett was not merely an observer who was not directly involved in the tortious activity. She was an object of the police officer's activities since she was a member of the group of children he was pursuing." Id. at 232, 362 N.W.2d at 142. This factor caused the court to distinguish Garrett from a longstanding precedent, Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935).
In Waube, the court refused to recognize a cause of action for negligent infliction of emotional distress. The plaintiff, Mrs. Waube, was looking out the window of her house watching her child cross the highway when she saw the defendant's automobile negligently strike and kill her child. Mrs. Waube, as a result of witnessing the accident, became extremely hysterical and sick, and died two weeks later from the emotional shock. Mrs. Waube, however, was outside the field of physical danger and her distress was occasioned solely by the peril of another. The court held that allowing recovery would be wholly out of proportion to the tortfeasor's culpability, place an unreasonable burden upon users of the highway, open the way to fraudulent claims, and
In our case, where the choice between Waube and Garrett is resolved by a determination of whether the claimant is an observer or a participant, it is difficult to imagine a more clear-cut example of the latter than a mother giving birth to a child in distress.
The defendant seeks to distinguish this case from Garrett on grounds that Mrs. Westcott's condition did not arise contemporaneously with the alleged tortious activity. Whether the manifestations of her illness were immediate or delayed is not controlling so long as she can show the necessary causal connection. The mere fact that she first obtained professional help approximately two weeks after the incident is relevant to a determination of the extent of her injuries. It is no basis upon which to conclude as a matter of law that she has no right to pursue a claim.
By the Court.—Judgment reversed and cause remanded.