Pond v . Majercik CV-94-225-M 02/21/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia Pond, Individually and as Administratrix of the Estate of Scott Pond, Plaintiff, v. Civil N o . 94-225-M

Donald A . Majercik, and Parker Aviation Enterprises, Inc., Defendants, and John McGrath, Executor of the Estate of Mary Jane McGrath, Defendant and Third Party Plaintiff,

v.

Nathan Pond, Gary Pond, William Batesole, James Parker, Jr., Lebanon Riverside Rotary, an Unincorporated Association, and the United States of America, Third Party Defendants.

O R D E R

Plaintiff, Patricia Pond ("Pond") sues defendants, the

Estate of Mary Jane McGrath (the "McGrath Estate"), Donald

Majercik, and Parker Aviation Enterprises ("Parker"), seeking

damages for the death of her husband, Scott Pond. Pond's

theories of recovery include the common law tort of negligent

infliction of emotional distress and loss of consortium. The

McGrath Estate moves for partial summary judgment, Fed. R. Civ.

P. 5 6 , asserting that there are no disputed issues of material fact and that defendants are entitled to judgment as a matter of

law on both the negligent infliction and loss of consortium

claims. Defendants Majercik and Parker move to join the McGrath

Estate's motion for partial summary judgment. For the reasons

stated below, defendants' motions for partial summary judgment

are granted in part and denied in part.

I. STANDARD OF REVIEW

Summary judgment is proper "if pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). A material

fact "is one `that might affect the outcome of the suit under the

governing law.'" United States v . One Parcel of Real Property

with Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson

v . Liberty Lobby, Inc.,

4 2 , 248 (1986)). The moving

party has the burden of demonstrating the absence of a genuine

issue of material fact for trial. Anderson, 477 U.S. at 256.

The party opposing the motion must set forth specific facts

showing that there remains a genuine issue for trial,

demonstrating "some factual disagreement sufficient to deflect

2 brevis disposition." Mesnick v . General Electric Co.,

(1st Cir. 1991), cert. denied,

(1992).

This burden is discharged only if the cited disagreement relates

to a genuine issue of material fact. Wynne v . Tufts Univ. Sch.

of Medicine,

9 1 , 794 (1st Cir. 1992). In reviewing

defendants' motions for summary judgment, the court construes the

evidence and draws all justifiable inferences in favor of Pond.

Anderson, 477 U.S. at 255.

II. FACTUAL BACKGROUND

On July 2 4 , 1993, Patricia Pond attended the Lebanon Air

Show to watch her husband, Scott Pond, perform a parachute jump.

(Pond T r . at 37-38.) The act in which Scott Pond was to

participate called for two biplanes, piloted by Donald Majercik

and Mary Jane McGrath, to circle two or three parachutists1 as

they descended to the airfield. Patricia Pond watched as the

jump plane carrying her husband and two other parachutists, Nate

and Gary Pond, took off and moved into position for the jump.

(Id. at 46-48.) She also watched as the two biplanes took off,

following the jump plane.

1 The parties dispute whether two or three parachutists were supposed to jump. This factual dispute is not relevant to the pending motion for partial summary judgment.

3 When the jump plane reached the proper altitude and

position, the parachutists jumped out of the plane. Nate and

Gary pond exited the plane first and deployed their parachutes.

The first biplane, piloted by Majercik, began circling them as

they descended. The second biplane, piloted by McGrath, followed

immediately behind the first biplane. At or about the time

McGrath began this maneuver, Scott Pond exited the jump plane.

McGrath's biplane collided in midair with Scott Pond, tragically

causing both of their deaths.

Patricia Pond was observing the act from a position about

fifteen feet from the jumpers' anticipated landing zone. (Id. at

54.) She did not observe Scott Pond exit the jump plane. (Id.)

Nor did she see, or otherwise perceive, the mid-air collision

that killed her husband. (Id. at 96.) Patricia Pond first

realized that something had gone awry when she noticed that her

husband was free falling longer than was normal. She then saw

his emergency parachute, rather than his main parachute, open at

an altitude above 2000 feet. (Id. at 52-53.)

As Scott Pond descended, Patricia Pond noticed that his

hands and feet were limp and thought he had somehow lost

consciousness during the jump. (Id. at 5 4 , 96.) She then saw

him land, "sort of in a pile," on the ground. (Id. at 96.)

4 After Scott Pond landed, his parachute fell on top of him,

covering his body. (Id. at 96-97.) Patricia Pond ran toward the

spot where her husband had landed, but before she could reach the

body she was turned back by family members who told her that

Scott Pond was dead. Until that point, Patricia Pond did not

know that her husband had been killed. (Id. at 55.)

Patricia Pond now sues the McGrath Estate, Donald Majercik,

and Parker Aviation, an organizer of the air show, seeking to

recover damages for, among other things, the emotional distress

she suffered as a direct and proximate result of witnessing her

husband's death and for loss of spousal consortium. Defendants

counter that the relevant facts are undisputed and that they are

entitled to judgment as a matter of law on both claims.

III. DISCUSSION

A. Negligent Infliction of Emotional Distress

In Corso v . Merrill,

(1979), the New Hampshire

Supreme Court discarded the familiar "zone-of-danger" test for

negligent infliction of emotional distress claims by bystanders

and replaced it with a tripartite "foreseeability" test borrowed

from California common law.

. The foreseeability

test requires a bystander plaintiff to prove: (1) she was a close

5 relation of the victim; (2) there was a close connection in time

between the accident and the resulting injury to the plaintiff;

and (3) she was geographically close to the accident scene.

Wilder v . City of Keene,

(1989) (citing Corso,

5 4 , 6 5 7 , 6 5 9 ) . A plaintiff must prove each of these

three prongs of the Corso test, often referred to as proximity of

relation, time, and geography, in order to succeed on a claim for

negligent infliction of emotional distress. Defendants contend

that they are entitled to partial summary judgment because the

evidence demonstrates that Pond satisfies neither the temporal

nor the geographic proximity prong of the Corso test.2

Both the temporal and geographic prongs of the Corso test

require a certain relationship between the plaintiff and "the

accident." In their effort to demonstrate that plaintiff does

not meet these two prongs of the test, defendants endeavor to

define "the accident" to include only the moment of impact

between McGrath's airplane and Scott Pond. The accident, they

2 Defendants, of course, concede that Patricia Pond satisfies the "relational proximity" prong of Corso. Defendant Majercik contends that Vermont law, rather than New Hampshire law, governs Pond's claims against him. He does not, however, point to any facts or law supporting his position. Because Majercik's choice of law question has not been adequately raised or briefed, the court declines to address it at this time.

6 argue, does not include any portion of Scott Pond's subsequent

descent.

Such a narrow and artificial definition of "the accident"

finds little support in New Hampshire law. In fact, Corso itself

defines "the accident" to include events following impact itself.

In that case, M r . Corso was allowed to recover for emotional

distress he suffered after his daughter was struck by a car. Mr.

Corso did not see or hear the car striking his daughter; nor did

he observe his daughter as she fell to the ground following

impact. Hearing his wife scream, M r . Corso ran to the scene and

there found his daughter lying on the ground, severely injured.

Mr. Corso's experience was described by the New Hampshire Supreme

Court as follows: "[I]t can be said that he contemporaneously

perceived the accident for he `was so close to the reality of the

accident as to render [his] experience an integral part of it.'"

Corso,

(quoting Landreth v . Reed,

(Tex. Civ. App. 1978)).

The Corso court recognized that artificial distinctions

cannot be drawn between, for example, the moment of impact and

the moment the injured victim comes to rest. Instead, for

purposes of the Corso test, the accident must be viewed as a

continuum, encompassing a series of discrete moments in time.

7 The key is whether the observation occurs within sufficiently

close temporal and geographic proximity that the defendant could

reasonably foresee that the plaintiff would suffer severe

emotional distress as a result of the observation.

Because of the nature of Scott Pond's accident, a longer-

than-usual period elapsed between the moment of impact and the

moment he came to rest on the ground. While that extended time

frame might make it easier to conceptually separate the discrete

events that made up the accident, as noted above, Corso and its

progeny do not recognize such artificial distinctions as relevant

in determining whether the plaintiff perceived the accident

sufficiently close in time and place as to cause foreseeable

emotional distress. The accident to which Patricia Pond must

have been temporally and geographically proximate in this case

includes the collision between McGrath's airplane and Scott Pond,

his descent, and his impact with the ground.

1. Temporal Proximity

The temporal proximity prong is the heart of the Corso test,

"requiring that the emotional distress must result from a direct

emotional impact upon the plaintiff[] through [her] sensory

perception and that this perception must be contemporaneous with

8 the accident." Corso,

. In order to fulfill this

prong, the plaintiff must demonstrate both that "[t]he emotional

injury [is] directly attributable to the emotional impact of the

plaintiff's observation or contemporaneous sensory perception of

the accident and immediate viewing of the accident victim."

.

The record establishes that Patricia Pond contemporaneously

perceived the accident and immediately viewed the accident

victim. Although she did not observe the precise impact that

killed her husband, she did see his body in an extended and

alarming free fall shortly after impact. As Scott Pond descended

following deployment of his emergency parachute, Patricia Pond

also observed that her husband's hands and feet were limp.

Believing that he had been injured during the jump, she ran

toward him and saw his body land "in sort of a pile" on the

ground. Before she reached her husband she was turned back and

told that he had been killed.

These facts notwithstanding, defendants argue that Pond

cannot fulfill the temporal proximity prong of the Corso test

because her emotional distress was not the result of her

contemporaneous perception of the accident. Rather, defendants

claim, Pond suffered distress only when she was informed by a

9 family member that her husband was dead. Under Corso, "the shock

[must] result[] from a direct emotional impact upon plaintiff

from the sensory and contemporaneous observance of the accident,

as contrasted with learning of the accident from others after its

occurrence."

.

Pond, on the other hand, argues that her distress did result

from her perception of the accident and not simply, as defendants

contend, from learning from another that her husband was dead.

Evidence submitted by Pond, viewed in the light most favorable to

her, supports the conclusion that she suffered severe emotional

distress as a result of witnessing her husband's injured body

descend, first in a free fall and later under his emergency

parachute, as well as from having learned at the time and scene

that the worst had occurred. A report prepared by Pond's

psychotherapist, Deborah Jones, states that Pond's emotional

distress was caused, at least in part, by "her witnessing the

accident with her two year old daughter," and adds that her

bereavement has been "complicated by the traumatic stress of how

her husband was killed." Therefore, the record demonstrates that

Pond has satisfied the temporal proximity prong of the Corso test

for purposes of asserting a negligent infliction of emotional

distress claim.

10 2. Geographic Proximity

In order to recover for negligent infliction of emotional

distress, plaintiff must also show that she was geographically

close to the accident scene. Pond has testified, at deposition,

that she stood fifteen to twenty feet away from Scott Pond's anticipated landing zone during his descent. As her husband

neared the ground, Pond ran closer to the landing site. She was

near enough to the accident to observe that the emergency

parachute had been deployed, that her husband's hands and feet

were limp, and that he appeared unconscious. Viewed in the light

most favorable to Pond, the record demonstrates that she also

meets the geographic proximity prong of the Corso test. Because

Pond's allegations and submissions are sufficient to meet both

contested prongs of the Corso test, defendants' motions for

partial summary judgment on Pond's claims of negligent infliction

of emotional distress must be denied.

B. Loss of Consortium

Pond also seeks damages for loss of spousal consortium

stemming from the death of Scott Pond. Defendants argue that

they are entitled to judgment as a matter of law on Pond's loss

of consortium claims because, under well-settled New Hampshire

11 law, damages for loss of consortium cease at the time of the

spouse's death. Pond concedes, as she must, that "McGrath would

be entitled to summary judgment under existing New Hampshire

law." (Pond O b j . to Mot. Sum. Judg. at 3.) See Archie v .

Hampton,

(1972). Nonetheless, Pond argues that

defendants' motions for partial summary judgment should not be

granted. Instead, she claims that the New Hampshire Supreme

Court would reject this "harsh and irrational" limitation on

consortium claims if directly presented with the opportunity to

do so and, accordingly, requests this court to certify the

question to the New Hampshire Supreme Court pursuant to Rule 34

of the New Hampshire Supreme Court Rules.

Whether to certify a state law issue to the state's highest

court is discretionary. Lehman Bros. v . Schein,

(1974); Fischer v . Bar Harbor Banking & Trust Co.,

, 7 (1st Cir. 1988), cert. denied,

(1989); Nieves

ex rel Nieves v . University of Puerto Rico,

7 0 , 275 (1st

Cir. 1993). Certification is generally appropriate when the

legal question is novel and the state's law on the question is

unsettled. Lehman Bros.,

. The question Pond

seeks to certify is not particularly novel, having been

12 last directly addressed by the New Hampshire Supreme Court in

Archie v . Hampton,

3 , 17 (1972), and by this court in

Parker v . Richard Pelletier Transit, Inc., N o . C90-32-L, slip o p .

at 5-6 (D.N.H. Sept. 2 0 , 1990).

More importantly, the status of New Hampshire's law on the

question of whether damages for loss of consortium cease upon the

spouse's death is not at all unsettled. As noted above, the New

Hampshire Supreme Court decided, in 1972, that under New

Hampshire law "damages to be recovered by the plaintiff are to be

restricted to her loss of consortium from the time of her

husband's injury to his death." Archie,

7 . Pond

has not directed the court's attention to a single case

interpreting New Hampshire law in a manner contrary to the rule

of Archie.

Pond argues that the majority of states allows a survivor to

claim damages for consortium lost after the death of his or her

spouse. But in this diversity case the court is obligated to

apply the rules of decision of New Hampshire. See Erie R.R. v .

Tompkins,

(1938). As discussed, New Hampshire's law,

though different, is settled.

Finally, a party who chooses the federal forum in a

diversity action, as Pond has done here, "is in a peculiarly poor

13 position to seek certification." Fischer,

(quoting

Cantwell v . University of Massachusetts,

(1st

Cir. 1977)). A federal court "should be wary of certification

where [the] requesting party merely seeks to persuade [the] state

court to extend current state law." Nieves, 7 F.3d at 278

(citing Venezia v . Miller Brewing Co.,

8 8 , 192 n.5 (1st

Cir. 1980)).

In a case such as this, where the interpretive signposts of

state law are, at present, clear and unambiguous, certification

to the New Hampshire Supreme Court would be inappropriate as an

unwarranted burden on that court. Armacost v . Amica Mut. Ins.

Co.,

6 7 , 269 (1st Cir. 1993). Accordingly, defendants'

motions for summary judgment on Pond's claims for loss of

consortium are granted, and Pond's motion to certify the question

to the New Hampshire Supreme Court is denied.

IV. CONCLUSION

For the reasons discussed above, defendants' motions for

summary judgment on Pond's claims for negligent infliction of

emotional distress are denied; their motions for summary judgment

on Pond's claims for loss of spousal consortium are granted.

Accordingly, the McGrath Estate's motion for partial summary

14 judgment (document n o . 79) is granted in part and denied in part,

Majercik's motion for partial summary judgment (document n o . 102)

is granted in part and denied in part, and Parker's motion for

partial summary judgment (document n o . 86) is granted in part and

denied in part.

SO ORDERED.

Steven J. McAuliffe United States District Judge February 2 1 , 1996 cc: Michael G. Gfroerer, Esq. Jeffrey B . Osburn, Esq. David B . Kaplan, Esq. Garry R. Lane, Esq. Charles W . Grau, Esq. Mark Scribner, Esq. David H . Bradley, Esq. Douglas J. Miller, Esq. Michael G. McQuillen, Esq. Richard B . Couser, Esq. Ronald L . Snow, Esq. James C . Wheat, Esq.

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