IN THE SUPREME COURT OF THE STATE OF MONTANA 

SHARON R. VERSLAND, Individually, 

as Personal Representative of the 

Estate of BERT MARTIN VERSLAND, Deceased, 

et al., 

Plaintiff, 

-vsCAROTd TRANSPORT, 

Defendant. 

ORIGINAL PROCEEDING: 

FOR COUNSEL: 

For Plaintiff: 

Richard W. Anderson argued; Anderson, Edwards & Plolloy, 

~illings, Montana: Donald Molloy argued, Billings, 

For Defendant: 

Herbert I. Pierce, 111, argued, Crowley Law Firm, 

Billings, Montana 

Submitted: May 31, 1983 

Decided : 

Filed: 

01: i L I 1~83 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

The United States District Court for the District of 

Montana has certified this action to this Court for a 

determination of three issues. 

The following facts were stipulated for certification. 

On October 7, 1980, Bert Ma.rtin Versland was driving a New 

Holla.nd bale wagon in a northerly direction on Montana 

Highway 191. Near his home, approximatley eighteen miles 

north of Big Timber, a collision occurred between the bale 

wagon and the defendant's semi-truck driven by Richard 

Martineau. Bert Versland was killed in the collision. Sharon 

Versland, the plaintiff, witnessed part of the collision and 

then saw her husband's body at the scene. 

At the time of his death, Bert Versland was married to 

Sharon Versland. He was the stepfather of Michelle Louise 

Jones and Laura Marie Korpela, Sharon Versland's minor 

children by prior marriages. The children were not adopted 

by the decedent but lived with him and were dependent upon 

him for support. 

On November 25, 1980, Sharon Versland filed a complaint 

against defendant in United States District Court for the 

District of Montana. In the complaint and her more definite 

statement, she seeks relief in her own behalf, as personal 

representative of her husband's estate, and as custodian and 

next friend of the two minor children. In addition to a 

claim for her husband's wrongful death, Versland seeks to 

recover for the shock, fright, mental pain and suffering 

which she claims were caused by seeing pa.rt of the collision 

and then seeing her husband-'s body at the scene of the 

accident. 
The defendant, Caron Transport, filed a motion seeking 

to dismiss Sharon Versland's claim for emotional shock and 

mental anguish on the ground that it fails to state a claim 

upon which relief can be granted. The defendant al-so 

challenges the right of the nonadopted minor stepchildren of 

Bert Versland to state a claim for the loss of consortium and 

support of Bert Versland. 

The parties agree three issues materially affect the 

case and therefore the United States District Court for the 

District of Montana has requested this Court to accept 

jurisdiction and decide these issues of state law: 

1. Whether under Montana law a spouse may recover for 

the emotional trauma caused by witnessing a collision which 

causes the infliction of death or injury of the other spouse; 

2. Whether under Montana law a spouse ma.y recover for 

the negligent infliction of emotional trauma caused by 

witnesssing a collision which causes the infliction of death 

or injury to the other spouse; and 

3. Whether under Montana law the nonadopted minor 

stepchildren of a decedent may state a claim for the 

deprivation of the decedent's consortium and support when 

they had been received into decedent's family and were 

supported by the decedent as if he were the natural or 

adoptive father. 

Counsel for the plaintiff does not address issue number 

one in either the brief or in oral argument. Counsel for 

defendant defines the first issue to mean that plaintiff is 

asking this Court to hold that there is strict liability in 

infliction of emotional distress cases. We are somewhat at a 

loss as to the precise meaning of the first issue; however, 

assuming defendant's interpretation is correct, this Court 

can find no rational basis, no overriding interest and no 
existing authority for extending a blanket of strict 

liability for the infliction of such emotional distress. 

Issue No. 2 asks whether a spouse may recover for the 

negligent infliction of emotional trauma caused by witnessing 

a collision which causes the infliction of death or injury to 

the other spouse. This issue has been addressed by many 

courts in many jurisdictions. Early courts denied recovery 

of damages for emotional trauma if there was no physical 

impact with the plaintiff. Mitchell v. Rochester Railway Co. 

(1896), 151 N.Y. 107, 45 N.E. 354. Later the impact rule was 

replaced with the "zone of danger" rule. Under this rule, a 

plaintiff could recover if he were located within the zone of 

defendant's negligent conduct and feared for his own safety. 

Amaya v. Home Ice, Fuel & Supply Co. (1963), 59 Cal.2d 295, 

379 P.2d 513. 

In Dillon v. Legg (1968), 68 Cal.2d 728, 441 P.2d 912, 

the California Supreme Court abandoned the zone of danger 

rule and allowed recovery for emotional trauma suffered by a 

mother who witnessed her daughter killed by a motorist as she 

crossed a street. Although the mother was not in physical 

danger, the court held it reasonably foreseeable that 

negligent operation of a motor vehicle that causes injury to 

a child will cause mental distress to a parent who witnesses 

the accident. 

The Dillon court stated: 

"Since the chief element in determining 

whether defendant owes a duty or an 

obligation to plaintiff is the 

foreseeability of the risk, that factor 

will be of prime concern in every case. 

Because it is inherently intertwined with 

foreseeability such duty or obligation 

must necessarily be adjudicated only upon 

a case-by-case basis. We cannot now 

predetermine defendant's obligation in 

every situation by a fixed category; no 

immutable rule can esta.blish the extent 

of that obligation for every circumstance 
of the future. We cam, however, define 

guidelines which will aid in the 

resolution of such an issue. . ." 

Dillon, 441 P.2d 912, 920. 

In establishing guidelines, the California Supreme 

Court stated: 

I1 . . . [in] determining . . . whether 

defendant should reasonably foresee the 

injury to plaintiff, or, in other 

terminology, whether defendant owes 

plaintiff a duty of due care, the courts 

will take into account such factors as 

the following: 

"(1) Whether plaintiff was located near 

the scene of the accident as contrasted 

with one who was a distance away from it. 

(2) Whether the shock resulted 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. (3) Whether 

plaintiff and the victim were closely 

related, as contrasted with an absence of 

any relationship or the presence of only 

a distant relationship." Dillon, 441 

P.2d 912, 920. 

Since Dillon, many courts have rejected the prior 

limitation of zone-of-physical-danger and instead have 

created a zone-of-psychic-danger limitation which is 

reflected in the first two elements of the Dillon test. The 

New York Court of Appeals recognized in 1961 that using the 

impact rule to bar a.11 claims of psychic trauma absent actual 

physical impact was arbitrary. Battalla v. State (19611, 10 

N.Y.2d 237, 176 N.E.2d 729. The court chose instead to rely 

upon competent medical proof and the jury's historic ability 

to weed out fraudulent claims. Battalla, 10 N.Y.2d at 242, 

176 N.E.2d at 731-732. In another New York case, bafferty v. 

Manhasset Medical Center Hospital (1980), 103 ~isc.2d 98, 425 

N.Y.S.2d 244, a woman was allowed recovery for emotional 

distress caused by witnessing the death of her mother-in-law 

resulting from the transfusion of mismatched blood. The 

court held that since the plaintiff's presence was actually 
known to the hospital, the only reasonable circumscription of 

the extent of the duty owed to her wa-s that of a reasonable 

zone of danger within which psychic trauma could be 

inflicted. As a result of this reasonably foreseeable 

danger, a duty arose on the part of the hospital owing 

directly to the daughter-in-law. 

In 1979, the Pennsylvania Supreme Court held. that where 

a mother witnessed a negligently driven automobile strike and 

kill her minor daughter, while not being in any physical 

danger herself, the mother could recover for her psychic 

injuries under the theory that such injuries would be 

reasons-bly foreseeable to any tortfeasor. Sinn v. Burd 

(1979), 486 Pa. 146, 404 A.2d 672. 

In Barnhill v. Davis (Iowa. 1981), 300 N.W.2d 104, the 

Iowa Supreme Court considered the traditional view, which 

conditioned recovery on the bystander's presence in the zone 

of danger but decided that the better view permitted recovery 

regardless of whether the plaintiff was in the zone of 

physical danger. Barnhill, 300 N.W.2d at 107. 

The Dillon requirement of presence at the scene has 

been expanded in some jurisdictions, including California 

where a mother was a.llowed to recover when she witnessed her 

young son being pulled from defendant's pool and participated 

in the attempt to revive him. The child died three days 

later. The court concluded that, as a matter of law, it 

could not say that the injuries resulting from the pool 

owners' negligence were not still being experienced at the 

time the mother arrived on the scene. Nazaroff v. Superior 

Court in and for Cty. of Santa Cruz (1978), 80 Cal.App.3d 

553, 145 Cal.Rptr. 657. See also, Landreth v. Reed 

(Tex.Civ.App. 1978), 570 S.W.2d 486; Grimsby v. Samson 
(1975), 85 Wash.2d 52, 530 P.2d 291; Archibald. v. Braverman 

(1969), 275 Cal.App.2d 253, 79 Cal.Rptr. 723. 

The second Dillon guideline is "whether the shock 

resulted 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." Dillon, 441 P.2d 912, 920. 

This requirement of actual observance of the event has 

been expanded since Dillon to include sensory perception of 

the accident and not just strict observance of the event. 

Bliss v. Allentown Public Library (E.D. Pa. 19801, 497 

F.Supp. 487; Corso v. Merrill (1979), 119 N.H. 647, 406 A.2d 

300; a.nd Krouse v. Graham (1977), 19 Cal.3d 59, 562 P.2d 

1022. 

It is clear that over the years since Dillon was handed 

down, the requirements of presence and observation h.a.ve been 

expanded and the distinctions between the two elements have 

blurred. We find that if a plaintiff is required to 

experience actual sensory perception of the accident, the 

requirement of proximity is necessarily satisfied. 

Consequently, we hold that to recover in Montana for the 

negligent infliction of emotional distress the first element 

to be considered shall be as foll-ows: 

Whether the shock resulted. from a direct 

emotional impact upon plaintiff from the 

sensory and contemporaneous preception of 

the accident, as contrasted with learning 

of the accident from others after its 

occurrence. 

The next element pertains to the degree of relationship 

between the plaintiff and the victim. Dillon requires that 

the plaintiff and victim be "closely related," as contrasted 

with the absence of any relationship or the presence of only 

a distant relationship. This requirement has also been 
expanded by various jurisdictions in the years since ill on. 

For example, Arizona, in Keck v. Jackson (1979), 122 ~riz. 

114, 593 P.2d 668, interpreted this requirement as including 

"a person with whom the plaintiff has a close personal 

relationship, either by consanguinity or otherwise." Keck, 

593 P.2d 668, 670. The Supreme Court of Hawaii held that the 

absence of a blood relationship between the victim and the 

plaintiff bystander would not foreclose recovery of damages 

for psychic injury, and the New York lower appellate court in 

Lafferty, supra, permitted a daughter-in-law to recover. We 

hold, however, that the guideline for the necessary 

relationship shall be the same as that of Dillon: 

Whether plaintiff and the victim were 

closely related, as contrasted with an 

absence of any rela.tionship or the 

presence of only a distant relationship. 

The third element which we hold must be considered in 

an action for the negligent infliction of emotional distress 

is: 

Either death or serious physical injury 

to the victim must have occurred as a 

result of defendant's negligence. 

Under the foreseeability test, supra, we find that it 

is reasonably foreseeable to a defendant that serious 

emotional distress to one party may arise from defendant's 

negligent acts inflicting serious bodily injury or death to a 

second party. We do not choose to limit recovery strictly to 

accidents wherein the victim dies. However, we do not intend 

that bystanders be allowed to recover even where there is 

severe emotional distress when the victim is not seriously 

injured . Whether the injury is sufficiently severe to 

support a claim for recovery will have to be decided on a 

case-by-case basis in the trial court. 
We note that a number of jurisdictions still require 

tha.t plaintiff bystander prove physical manifestations of the 

underlying emotional trauma. While required under Dillon, 

California abandoned this requirement in Molien v. Kaiser 

Foundation Hospitals (1980), 167 Cal.Rptr. 831, 616 ~.2d 813. 

In Molien the court stated: 

"It supposedly serves to satisfy the 

cynic that the claim of emotional 

distress is genuine. Yet we perceive two 

significant difficulties with the scheme. 

First, the classification is both 

overinclusive and underinclusive when 

viewed in the light of its purported 

purpose of screening false claims. It is 

overinclusive in permitting recovery for 

emotional distress when the suffering 

accompa.nies or results in any physical 

injury whatever, no matter how 

trivial. . . More significantly, the 

classification is underinclusive because 

it mechanica.11~ denies court access to 

claims that may well be valid and could 

be proved if the plaintiffs were 

permitted to go to trial. 

"The second defect in the requirement of 

physical injury is that it encoura.ges 

extravagant pleading and distorted 

testimony. Thus it has been urged that 

the law should provide a remedy for 

serious invasions of emotional 

tranquility, 'otherwise the tendency 

would be for the victim to exaggerate 

symptoms of sick headaches, nausea, 

insomnia, etc. , to make out a technical 

basis of bodily injury, upon which to 

predicate a para.sitic recovery for the 

more grievous disturbance, the mental and 

emotional distress she endured. ' 

(Magruder, Mental and Emotional 

Disturbance in the Law of Torts (1936), 

49 Harv.L.Rev. 1033, 1059; see also Anno. 

(1959) 64 A.L.R.2d 100, 117, fn. 18, 128 

& f. 8 [suggesting that 'in most 

instances of severe mental disturbance 

some deleterious physical consequence 

can, with a little ingenuity, be found . . .,I and that characterization of an 

injury as physical or mental may depend 

on the ingenuity of counsel in framing 

the pleadings] .) " Molien, 616 P.2d at 

820. 

The Court reasoned that the attempted distinction 

between physical and psychological injury merely clouds the 
essential issue of proof: whether pla.intiff suffered a 

serious and compensable injury. In addition, we find that in 

light of today's more advanced state of medical science, 

technology and testing techniques, the traditional limitation 

of requiring the existence of physical injury as a condition 

precedent to recovery for psychic injury is no longer 

necessary. While physical manifestation of emotional trauma 

may be considered by the trier of fact along with other 

evidence, physical manifestations will not be required to 

support a prima facie case for negligent infliction of 

emotional distress. 

Defendant argues that acceptance of bystander recovery 

will not further justice and that arbitary rules will not 

shield the defendant from unlimited liability. We find 

defendant's arguments unconvicing. Defendant's a-rguments are 

essentially the same as those raised by the defendan.t in 

Dillon, and history has shown that Dillon did not provide a 

basis for unlimited liability, even in those jurisdictions 

which have relaxed Dillon's basic requirements. We do not 

state that defendant has unlimited liability in a 

circumstance such as the facts of this case. Indeed, we 

specifically hold that defendant has potential liability only 

for injuries to others which to defendant at the time were 

reasonably foreseeable. 

In summary, we hold the following to be proper elements 

for the courts to apply when determining a claim for dama.ges 

for the negligent infliction of emotional distress: 

1. The shock must result from a direct emotional 

impact upon the plaintiff from the sensory and 

contemporaneous perception of the accident, as contrasted 

with learning of the accident from others after its 

occurrence. 
2. The plaintiff and victim must be closely related, 

as contrasted with an absence of any relationship or the 

presence of only a distant relationship. 

3. Either death or serious physical injury of the 

victim must have occurred as a result of the defendant's 

negligence. 

Issue No. 3 asks whether the nonadopted minor 

stepchildren of decedent may state a claim for the 

deprivation of decedent's consortium and support. Plaintiff 

argues the basis for these damages is section 27-1-323, MCA: 

"[iln every action under 27-1-512 and 27-1-513 such damages 

may be given as under all the circumstances of the case may 

be just,'' and section 27-1-513, MCA: " [wlhen the death of 

one person, not being a minor, is caused by the wrongful act 

or neglect of another, his heirs or personal representatives 

may maintain an action for damages against the person causing 

the death or, if such person be employed by another person 

who is responsible for his conduct, then also against such 

other person." (Emphasis added.) 

Plaintiff contends decedent's nonadopted stepchildren 

are "heirs" within the meaning of section 27-1-513, MCA, and 

to exclude their claim would be contrary to public policy. 

Heirs are those persons who are entitled to the property of a 

decedent under the statutes of intestate succession. Section 

72-1-103 (18) , MCA. A child may take from a decedent through 

intestate succession if the child is issue of the decedent. 

Section 72-2-203, MCA. Issue of a person means all his 

lineal descendants. Section 72-1-103 (22) , MCA. Thus, 

nonadopted stepchildren of a decedent are not heirs as 

defined by the intestacy statutes. As this Court stated in 

Swanson v. Champion International Corp. (Mont. 1982) , 646 

P.2d 1166, 1170, 39 St.Rep. 639, 643, ". . . the source of 
the damages recoverable in a wrongful death action is 

personal to the survivors of the decedent. The damages are 

not those of the decedent, but of the heirs by reason of his 

death." As the stepchildren are not heirs, they are not 

entitled to bring a claim for the deprivation of decedent's 

consortium and support. 

Plaintiff argues the Arkansas Supreme Court recognized 

stepchildren's claim for loss of consortium and support in 

Moon Distributors, Inc., v. White (1968) , 245 Ark. 627, 434 

S.W.2d 56. However, under Arkansas's wrongful death statute, 

beneficiaries of a wrongful death claim "are the surviving 

spouse of the deceased person, children, father and mother, 

brothers and sisters, persons standing in loco parentis to 

the deceased person, and persons --- to whom the deceased stood 

-- in loco parentis." Ark.Stat.Ann. Section 27-908. (Emphasis 

a.dded.) Thus, the Arkansas wrongful death statute is drafted 

specifically to include stepchildren whereas the Montana 

wrongful death statute is not. 

Pla.intiff claims a stepparent who provides support to a 

stepchild becomes a "presumptive parent." Section 40-6-217, 

MCA. However, this section is not related to the wrongful 

death statute and only provides that "if he receives them 

into his family and supports them, it is presumed that he 

does so as a parent and, where such is the case, they are not 

liable to him for their support nor he to them for their 

services." 

Lastly, plaintiff argues even if the stepchildren 

cannot recover under the wrongful death statute, they are 

entitled to bring a separate action for loss of consortium. 

In some jurisdictions a natural child may bring a cause of 

action for loss of consortium. See, Ferriter v. Daniel 

OIConnell's Sons, Inc. (Mass. 1980), 413 ~.~.2d 690. 
However, these cases deal only with natural children whereas 

the issue certified by the Federal District Court deals only 

with nonadopted stepchildren. Thus, these cases are not 

controlling. 

We therefore hold that nonadopted minor stepchildren of 

a decedent cannot state a claim for the deprivation of 

decedent's consortium and support. 

A copy of this opinion shall be mailed to the Clerk of 

the United States District Court for Montana, Billings 

Division. 

%Ad? g*~ Chief Justice 

We concur: 

District Judge, sitting in 

place of Mr. Justice John 

Conway Harrison