Appeal from Genesee, Thomas C. Yeotis, J.
D. E. Holbrook, P. J., and R. M. Maher and D. F. Walsh, JJ. Judge Maher concurs in result only.
1. Torts -- Emotional Distress -- Parent and Child -- Immediate Family -- Limitation of Recovery -- Serious Injury -- Actual Harm -- Contemporaneousness.
The shock of a parent at danger or harm to a child may be both a real and a serious injury but there are some limitations to legal recovery for such an injury: the injury threatened or inflicted upon the child must be a serious one, of a nature to cause severe mental disturbance to the plaintiff, and that shock must result in actual physical harm; the action should be confined to the immediate family of the one endangered, and it should be required that the plaintiff be present at the time of the accident or peril, or at least that the shock be fairly contemporaneous with it.
2. Torts -- Emotional Distress -- Parent and Child -- Witnessing Accident -- Material Difference.
A parent who views a child's injuries moments after an allegedly negligent accident may have a cause of action for emotional distress and resulting physical injury in spite of the fact that he or she did not witness the actual incident where the circumstances creating the injury to the parent were materially different from the circumstances undergone by other parents whose children have been injured in accidents which the parents did not witness.
The opinion of the court was delivered by: Holbrook
Complaint by Richard and Glenna Gustafson for themselves and by Richard Gustafson, as administrator of the estate of David Gustafson, deceased, for damages resulting from an automobile-bicycle collision. Summary judgment against Richard and Glenna Jackson on their complaint as individuals. Plaintiffs appeal.
This is an appeal from an order granting defendants' motion for partial summary judgment. The motion was apparently based upon GCR 1963, 117.2(1), which provides for a summary judgment in cases where plaintiffs fail to state a claim upon which relief can be granted. Since motions based upon GCR 1963, 117.2(1) are to be tested by the pleadings alone, Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), a substantial portion of plaintiffs' complaint is here quoted:
"1. That plaintiff herein is the duly appointed Administrator of the Estate of said decedent pursuant to proceedings had in the Probate Court for the County of Genesee, State of Michigan.
"2. That this cause arose in Davison Township, Genesee County, Michigan.
"3. That this cause arises from personal injuries sustained on July 30, 1974 which resulted in the death of David Gustafson on August 4, 1974.
"4. That at the time of his death, David Gustafson was five years of age and left surviving as his next of kin and heirs at law his father, Richard Gustafson and his mother, Glenna Gustafson.
"5. That the incident which gave rise to the injuries and death of David Gustafson occurred at the intersection of Potter Road and ...