Maine Recognizes the Independent Tort of Negligent Infliction of Emotional Distress: Gammon v. Osteopathic Hospital

Gerald Gammon opened his deceased father's hospital bag, expecting to find his personal effects. Instead, he discovered a bloodied leg, severed below the knee and bluish in color. Recoiling in horror, he yelled, "Oh my God, they have taken my father's leg off.” His aunt later recalled at trial that "he was as white as a ghost" and she thought he was going to have a heart attack. Gerald received a call on November 7, 1982, from the Osteopathic Hospital of Maine informing him that his father, Linwood Gammon, had succumbed to cancer that morning. A funeral home employee picked up the body and two bags purportedly containing the personal effects of the deceased from the hospital morgue. One of the bags, however, actually contained a pathology specimen from another hospital patient, an unfortunate mistake which caused Gerald a great deal of emotional suffering. After this traumatic incident, Gerald began to awake at night shaking and crying from nightmares for the first time in his life. His personality changed for the worse as he became extremely withdrawn and irritable with his wife and children, to the point where his wife seriously considered divorce. Gerald was suffering from classic symptoms of "traumatic neurosis": "repetitive frightening dreams, reproducing directly or symbolically the traumatic incident . . . irritability, usually expressed at home, particularly regarding the children and their noise . . . [w]ithdrawal . . . most commonly expressed in loss of sexual interest, poor concentration and memory, avoidance of sexual contacts, [and] intolerance of discussing symptoms or the traumatic event." At trial, Gerald's claim for negligent infliction of severe emotional distress against the hospital and funeral home resulted in a directed verdict for the defendants. The trial court allowed his claim of intentional infliction of emotional distress to go to the jury, which found that, although Gerald had suffered "severe emotional distress," it was not proximately caused by the intentional or reckless conduct of the defendants. The directed verdict left Gerald Gammon without redress for a wrong done to him by the defendants' negligence. Gammon appealed and the Supreme Judicial Court of Maine, sitting as the Law Court, vacated the directed verdict on the claim of negligent infliction of emotional distress, and held that the plaintiff had established a claim despite his failure to allege either physical consequences of his emotional distress or an independent underlying tort. Gammon v. Osteopathic Hospital propels Maine once again to the forefront of a growing trend in this country to recognize and protect a person's right to be free from negligently inflicted emotional distress. In the past two decades, the Law Court has been willing on occasion to accord the tort independent legal status. Recently, however, the court has retreated from this position by supporting the majority view which does not permit recovery for negligent infliction of emotional distress without certain accompanying circumstances. These circumstances usually involve either an underlying tort, some physical manifestation of the emotional distress, the plaintiff's fear for his own safety under the "zone of danger" rule, or special factual situations involving either the negligent mishandling of the corpse of a plaintiff's relative or the negligent transmission of a death message. Gammon removed these "artificial barriers" to recovery in a carefully reasoned opinion. This Note analyzes the Law Court's reasoning and holding in Gammon as it affects the status of the tort of negligent infliction of emotional distress in Maine. Through an analysis of case law in Maine and other jurisdictions, the Note concludes that, although Gammon provides some welcome relief from prior uncertainty surrounding the tort, the opinion leaves both the elements and outer bounds of the tort in an ambiguous state.