Marilyn Wilson Marilyn Wilson, as Guardian of Lori Dee Wilson, a Minor v. United States of America, Defendant-Third-Party-Plaintiff-Appellee v. Blanche Kallstrom, Third-Party-Defendant

Citations: 190 F.3d 959; 99 Daily Journal DAR 9635; 99 Cal. Daily Op. Serv. 7589; 1999 U.S. App. LEXIS 22022Docket: 98-35362

Court: Court of Appeals for the Third Circuit; September 14, 1999; Federal Appellate Court

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The case involves Marilyn Wilson and her daughter Lori Dee Wilson against the United States government under the Federal Tort Claims Act (FTCA), following an incident where Lori ingested a caustic lye detergent mistakenly given to her by Blanche Kallstrom at a social event. The Ninth Circuit Court of Appeals has certified a question to the Alaska Supreme Court regarding whether a plaintiff who has not suffered physical injury can recover damages for negligent infliction of emotional distress (NIED) when they inadvertently contribute to a harmful situation caused by the defendant's negligence. Kallstrom, who did not initially face a lawsuit but was brought in by the government as a third-party defendant, filed a counterclaim against the government for emotional distress resulting from the incident. The FTCA holds the government liable in tort claims similarly to private individuals according to applicable state law, which in this case is Alaska law, as the events occurred in Alaska. The certification aims to clarify a legal point on emotional distress claims under Alaska law, given the lack of existing precedent.

The district court ruled in favor of Wilson, finding the government negligent for allowing a dangerous substance, caustic lye, to be accessible, which led to Wilson's settlement and dismissal of her claims. The government subsequently dropped its third-party complaint against Kallstrom, leaving only Kallstrom's counterclaim against the government. Kallstrom sought partial summary judgment for negligent infliction of emotional distress (NIED), while the government moved to dismiss her counterclaim. The court granted the government's motion and denied Kallstrom's, with reconsideration also denied. Kallstrom appealed, arguing that the government's negligence caused her emotional distress and that she is entitled to damages under Alaska law.

There is a legal dispute regarding the applicability of Alaska law on NIED claims when the plaintiff is an active participant in causing injury to another. Generally, Alaska law does not allow NIED damages without physical injury, with two exceptions: the "bystander" exception and the "preexisting duty" exception. The bystander exception permits recovery for those closely related to a victim, as established in *Kavorkian*. However, Kallstrom does not qualify as she has no close familial relationship with the victim, Lori Dee. The second exception involves a preexisting duty of care, which requires a defendant to have a duty towards the plaintiff that could foreseeably cause emotional harm. Kallstrom's claim does not fall under these exceptions, as she lacks the necessary close relationship and has not established a preexisting duty owed to her by the government.

Alaska courts determine the existence of a duty of care in the absence of statutory, contractual, or doctrinal obligations by applying seven factors known as the "D.S.W. factors": foreseeability of harm, certainty of injury, connection between the defendant's conduct and injury, moral blame, policy to prevent future harm, burden on the defendant, and insurance availability for the risk. The legal relationship between the parties is central to this evaluation. The Alaska Supreme Court clarified that the existence of a duty is based on the nature of the relationship, rather than specific case facts, stating that preexisting duty exceptions do not apply if no contractual or fiduciary relationship exists. 

In Kallstrom's case, the district court ruled that she could not recover damages for Negligent Infliction of Emotional Distress (NIED) against the government due to the lack of physical injury and because she did not meet any exceptions. Kallstrom's situation is atypical for NIED claims, as she was not merely a bystander but actively involved in causing injury to another due to governmental negligence. No existing Alaska case law addresses whether a plaintiff without physical injury can recover for NIED when they unintentionally cause harm to an innocent victim. The Alaska Supreme Court's input on this matter would be crucial for resolving the dispute. 

The order concludes with a note from Chief Judge Procter Hug, Jr. regarding the potential for the Supreme Court to clarify state law questions that are determinative in ongoing cases.