Heiner v. Moretuzzo

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 80

.]




    HEINER, N.K.A. ZUCCO, APPELLANT, v. MORETUZZO ET AL., APPELLEES.
                    [Cite as Heiner v. Moretuzzo, 

1995-Ohio-65

.]
Torts—Negligence—Patient falsely diagnosed HIV positive—Ohio does not
        recognize claim for negligent infliction of serious emotional distress where
        the distress is caused by plaintiff's fear of a nonexistent physical peril.
                                  __________________
Ohio does not recognize a claim for negligent infliction of serious emotional
        distress where the distress is caused by the plaintiff's fear of a nonexistent
        physical peril. (Schultz v. Barberton Glass Co. [1983], 

4 Ohio St.3d 131

, 4
        OBR 376, 

447 N.E.2d 109

, and Paugh v. Hanks [1983], 

6 Ohio St.3d 72

, 6
        OBR 114, 

451 N.E.2d 759

, construed and distinguished; Criswell v.
        Brentwood Hosp. [1989], 

49 Ohio App.3d 163

, 

551 N.E.2d 1315

,
        approved.)
                                  __________________
        (No. 94-726—Submitted May 9, 1995—Decided August 16, 1995.)
        APPEAL from the Court of Appeals for Summit County, No. 16312.
                                  __________________
        {¶ 1} Patricia Heiner, n.k.a. Patricia Zucco, appellant, was interested in
conceiving a child through artificial insemination. On March 8, 1990, appellant
visited the office of appellee Dr. Richard W. Moretuzzo, a physician practicing in
the specialty areas of reproductive endocrinology, infertility and gynecology.
Appellant sought an evaluation of her physical condition in preparation for artificial
insemination.     As part of the evaluation, Moretuzzo requested that appellant
undergo blood tests for rubella, hepatitis and the human immunodeficiency virus
("HIV").
                             SUPREME COURT OF OHIO




        {¶ 2} Appellant's blood was drawn at the appellee Akron General Medical
Center, ("Akron General"). The blood sample was tested by appellee American
Red Cross ("Red Cross"). On March 13, 1990, Akron General informed Moretuzzo
that an initial test of the blood sample indicated that appellant was HIV positive.
Subsequently, Moretuzzo informed appellant of the results of the preliminary test.
Additionally, Moretuzzo told appellant that a second test of the blood sample was
being administered to confirm the preliminary findings.
        {¶ 3} Meanwhile, Red Cross conducted a second test of the original blood
sample.   The blood sample again tested HIV positive.          Moretuzzo informed
appellant of the test result and referred her to Dr. William Gardner, an infectious
disease specialist.
        {¶ 4} Appellant was examined by Dr. Gardner in May 1990. Appellant's
blood was once again drawn and tested for HIV. The result of the test indicated
that appellant was HIV negative. A repeat blood test confirmed that appellant was,
in fact, HIV negative.
        {¶ 5} Appellant commenced this action in the Court of Common Pleas of
Summit County against Moretuzzo, Akron General, and Red Cross.              In the
complaint, appellant alleged, among other things, that she had been falsely
diagnosed HIV positive as a result of appellees' negligence. Appellant sought
recovery from Moretuzzo for medical malpractice. She sought recovery from each
of the defendants for negligent infliction of serious emotional distress.
        {¶ 6} Red Cross filed a Civ.R. 12(B)(6) motion to dismiss appellant's claim
against it for negligent infliction of serious emotional distress. Additionally,
Moretuzzo and Akron General filed motions for summary judgment on the claims
against them for negligent infliction of serious emotional distress. In support of
their motions, appellees argued that appellant had not been placed in any real
physical danger by being falsely diagnosed HIV positive. In this regard, appellees
urged that Ohio does not recognize a right to recovery for negligent infliction of




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                                     January Term, 1995




serious emotional distress where the distress is caused by fear of a nonexistent peril.
The trial court granted summary judgment in favor of appellees, including Red
Cross1, on the claims for negligent infliction of serious emotional distress. Further,
the trial court expressly determined that there was "no just reason for delay"2 of an
appeal. See Civ.R. 54(B).
         {¶ 7} On appeal, the court of appeals affirmed the judgment of the trial
court, stating, in part:
         "In this case, Heiner was not, in fact, infected with the HIV virus when Dr.
Moretuzzo informed her of the positive HIV blood test. Thus, given that the blood
test resulted in a 'false positive,' Heiner was never in real danger or placed in actual
physical peril by the claimed negligent diagnosis. Heiner's recovery then [for
negligent infliction of serious emotional distress] could only be based on her
appreciation of a nonexistent peril. As Criswell [v. Brentwood Hosp. (1989), 

49 Ohio App.3d 163

, 

551 N.E.2d 1315

] makes clear, in Ohio the tort of negligent
infliction of emotional distress does not encompass the fear of a nonexistent peril.
         "Accordingly, having failed to show that the defendants' alleged negligence
placed her in actual physical peril, Heiner cannot recover as a matter of law for the
negligent infliction of emotional distress."
         {¶ 8} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                    __________________
         Allen Schulman & Associates, Allen Schulman, Jr. and Timothy B. Saylor;
and Brian L. Zimmerman, for appellant.




1. We are aware that Red Cross had not moved for summary judgment.

2. We recognize that the "no just reason for delay" language was not included in the entry granting
summary judgment to Red Cross.




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        Jacobson, Maynard, Tuschman & Kalur and Douglas G. Leak, for appellee
Moretuzzo.
        Porter, Wright, Morris & Arthur, Hugh E. McKay, Richard M. Markus,
Patricia A. Screen, David R. Cohen and Joyce D. Edelman, for appellee American
Red Cross.
        Roetzel & Andress, K. Richard Aughenbaugh and Thomas A. Pampush, for
appellee Akron General.
        Bricker & Eckler, James J. Hughes, Jr. and Catherine M. Ballard, urging
affirmance for amici curiae, College of American Pathologists, Ohio State Medical
Association, and Ohio Hospital Association.
        Duvin, Cahn, Barnard & Messerman and Barton A. Bixenstine, urging
affirmance for amicus curiae, Ohio Association of Civil Trial Attorneys.
        Michael R. Thomas, urging reversal for amicus curiae, Ohio Academy of
Trial Lawyers.
                                __________________
        DOUGLAS, J.
        {¶ 9} The question before us is whether Ohio law currently recognizes the
right of a plaintiff to maintain a cause of action for negligent infliction of serious
emotional distress where the defendant's negligence produced no actual threat of
physical harm to the plaintiff or any other person. The trial court and court of
appeals answered this question in the negative. For the reasons that follow, we
affirm the judgment of the court of appeals.
        {¶ 10} We begin our discussion with an overview of the scope and
limitations of the tort of negligent infliction of emotional distress. Historically, the
law in this state dictated that a plaintiff could not recover for negligent infliction of
emotional distress unless the plaintiff was found to have suffered a
contemporaneous physical injury. The historical requirement of contemporaneous
physical injury was established in Miller v. Baltimore & Ohio S. W. R.R. Co. (1908),




                                           4
                                January Term, 1995

78 Ohio St. 309

, 

85 N.E. 499

, paragraph three of the syllabus, wherein this court
held that "[n]o liability exists for acts of negligence causing mere fright or shock,
unaccompanied by contemporaneous physical injury, even though subsequent
illness results, where the negligent acts complained of, are neither willful nor
malicious."
       {¶ 11} However, in Schultz v. Barberton Glass Co. (1983), 

4 Ohio St.3d 131

, 4 OBR 376, 

447 N.E.2d 109

, we expanded the law of this state to allow more
liberal recovery for negligent infliction of emotional distress. In Schultz, a sheet of
glass fell from a truck and smashed into the windshield of a vehicle driven by
Schultz, the plaintiff. Schultz was able to maintain control of his vehicle, but
suffered serious emotional distress as a result of the accident. Schultz sued the
owner and driver of the truck and was awarded damages for emotional distress. On
appeal, the court of appeals reversed the judgment of the trial court and remanded
the cause for a determination whether Schultz had suffered a contemporaneous
physical injury. In Schultz, we reversed the judgment of the court of appeals and
held, in the syllabus, that "[a] cause of action may be stated for the negligent
infliction of serious emotional distress without a contemporaneous physical injury."
In so holding, we overruled Miller, supra, and its progeny.
       {¶ 12} Paugh v. Hanks (1983), 

6 Ohio St.3d 72

, 6 OBR 114, 

451 N.E.2d 759

, was decided on the heels of our decision in Schultz. In Paugh, Laurie C. Paugh
and her two children lived in a residence located directly across from a freeway exit
ramp. One evening, a vehicle proceeded through the stop sign at the end of the exit
ramp and crashed into the residence where Paugh and her daughter were sleeping.
Several months later, another vehicle crashed into a fence on the property. The
accident caused Paugh to fear for the safety of her children, since the accident took
place in an area where the children normally played. A third vehicle crashed into
the house approximately two weeks later, causing Paugh to fear for the safety of
her children. Paugh and her husband sued the drivers of the three automobiles for,




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                             SUPREME COURT OF OHIO




among other things, the mental suffering Paugh had experienced as a result of the
tortfeasors' negligence. In Paugh, we found that the plaintiffs had stated an
actionable claim for negligent infliction of serious emotional distress. 

Id. at 74

, 6
OBR at 116, 

451 N.E.2d at 762

.
       {¶ 13} In Paugh, we followed our holding in Schultz by once again
recognizing that a cause of action for negligent infliction of serious emotional
distress may be maintained without proof of a contemporaneous physical injury.

Paugh at 74-75

, 6 OBR at 116, 

451 N.E.2d at 762-763

. We also attempted to
provide some guidance to the bench and bar as to the limitations and scope of Ohio's
recognition of the tort of negligent infliction of serious emotional distress. In
Paugh, we held, at paragraphs two through four of the syllabus:
       "2. A cause of action may be stated for the negligent infliction of serious
emotional distress without the manifestation of a resulting physical injury. Proof
of a resulting physical injury is admissible as evidence of the degree of emotional
distress suffered.
       "3. Where a bystander to an accident states a cause of action for negligent
infliction of serious emotional distress, the emotional injuries sustained must be
found to be both serious and reasonably foreseeable, in order to allow a recovery.
       "3a. Serious emotional distress describes emotional injury which is both
severe and debilitating. Thus, serious emotional distress may be found where a
reasonable person, normally constituted, would be unable to cope adequately with
the mental distress engendered by the circumstances of the case.
       "3b.    The factors to be considered in order to determine whether a
negligently inflicted emotional injury was reasonably foreseeable include: (1)
whether the plaintiff was located near the scene of the accident, as contrasted with
one who was a distance away; (2) whether the shock resulted from a direct
emotional impact upon the plaintiff from sensory and contemporaneous observance
of the accident, as contrasted with learning of the accident from others after its




                                         6
                                 January Term, 1995




occurrence; and (3) whether the plaintiff and victim (if any) were closely related,
as contrasted with an absence of any relationship or the presence of only a distant
relationship.
        "4. A cause of action for the negligent infliction of serious emotional
distress may be stated where the plaintiff-bystander reasonably appreciated the peril
which took place, whether or not the victim suffered actual physical harm, and, that
as a result of this cognizance or fear of peril, the plaintiff suffered serious emotional
distress."
        {¶ 14} In Binns v. Fredendall (1987), 

32 Ohio St.3d 244

, 

513 N.E.2d 278

,
we were once again called upon to define the scope of recovery for the tort of
negligent infliction of emotional distress. In that case, the plaintiff, Mary L. Eleyet,
was a passenger in an automobile driven by her boyfriend, Donald L. Binns. Binns
was killed and Eleyet suffered personal injuries when the defendant, Fredendall,
negligently drove his vehicle into the side of Binns' car. Binns' head injuries were
severe and gruesome, and his head came to rest on Eleyet's shoulder. Eleyet's blouse
was soaked with blood, and she remained in the vehicle for some time following
the accident.
        {¶ 15} The issue presented in Binns was "whether the test we announced in
Paugh v. Hanks (1983), 

6 Ohio St.3d 72

, 6 OBR 114, 

451 N.E.2d 759

, for the
recovery of damages for emotional and psychiatric injuries applies where the
person seeking the damages has also suffered contemporaneous physical injury."

Binns at 245

, 

513 N.E.2d at 279

. We answered this question in the negative. In
Binns, at paragraphs one, two and three of the syllabus, we held that:
        "1. Negligently inflicted emotional and psychiatric injury sustained by a
plaintiff who also suffers contemporaneous physical injury in a motor vehicle
accident need not be severe and debilitating to be compensable. (Paugh * * *
[supra], distinguished.)




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                             SUPREME COURT OF OHIO




       "2. The emotional and psychiatric injury arising from an accident may
encompass more than the distress associated with the plaintiff's own
contemporaneous physical injuries.
       "3. Recovery for negligently inflicted emotional and psychiatric injuries
accompanied by contemporaneous physical injury may include damages for mental
anguish, emotional distress, anxiety, grief or loss of enjoyment of life caused by the
death or injury of another, provided the plaintiff is directly involved and
contemporaneously injured in the same motor vehicle and accident with the
deceased or other injured person."
       {¶ 16} A review of the foregoing authorities demonstrates that in Schultz,
we expanded the law to allow recovery for negligent infliction of emotional distress
without proof of a contemporaneous physical injury for plaintiffs who are directly
involved in an accident. In Paugh, we extended the rule of Schultz to permit
recovery for purely emotional injuries for plaintiff-bystanders who were not
directly involved in the accident.     However, in Paugh, we set forth certain
limitations on the right to recover for emotional injuries by requiring, among other
things, that the emotional injuries suffered by the plaintiff must be severe and
debilitating and reasonably foreseeable. Id. at paragraphs two and three of the
syllabus. Binns reminds us that a plaintiff who suffers physical injuries in an
automobile accident may recover for the emotional distress associated with his or
her own injuries, as well as the distress associated with having observed the death
or injury of another occupant of the vehicle, whether or not the plaintiff's emotional
injuries are severe and debilitating. Id. at paragraphs one, two and three of the
syllabus.
       {¶ 17} In the case at bar, appellant correctly cites Paugh and Schultz for the
proposition that a plaintiff seeking recovery for negligent infliction of serious
emotional distress need not prove that he or she suffered actual physical harm.
However, appellant further suggests that Paugh and Schultz permit recovery for




                                          8
                               January Term, 1995




emotional distress where, as here, the plaintiff neither witnessed nor was exposed
to any real or impending physical calamity. We disagree.
       {¶ 18} Schultz involved a situation where the person seeking recovery for
negligent infliction of serious emotional distress had been involved in an actual
physical calamity. See, also, Binns. Paugh involved a situation where the person
seeking recovery for emotional distress had been aware of a real and existing
physical peril. Here, appellant alleged that she had been negligently diagnosed HIV
positive and sought recovery for the emotional injuries resulting from the
misdiagnosis. However, the claimed negligent diagnosis never placed appellant or
any other person in real physical peril, since appellant was, in fact, HIV negative.
Thus, in our judgment, the case at bar differs significantly from those instances in
which this court has recognized a right to recover for negligent infliction of
emotional distress.
       {¶ 19} In High v. Howard (1992), 

64 Ohio St.3d 82, 85

, 

592 N.E.2d 818, 820-821

, overruled on other grounds in Gallimore v. Children's Hosp. Med. Ctr.
(1993), 

67 Ohio St.3d 244

, 

617 N.E.2d 1052

, we observed that "[i]n the absence of
statutory provision therefor, Ohio courts have limited recovery for negligent
infliction of emotional distress to such instances as where one was a bystander to
an accident or was in fear of physical consequences to his own person. Paugh v.
Hanks (1983), 

6 Ohio St.3d 72

, 6 OBR 114, 

451 N.E.2d 759

; Criswell v. Brentwood
Hosp. (1989), 

49 Ohio App.3d 163

, 

551 N.E.2d 1315

." See, also, Lawyers
Cooperative Publishing Co. v. Muething (1992), 

65 Ohio St.3d 273, 280

, 

603 N.E.2d 969, 974

. This statement of the law is a fair characterization of Schultz,
Paugh and Binns, because each of these three cases involved a plaintiff who
witnessed and/or experienced a dangerous accident or appreciated the physical
peril. The citation to Paugh in High provides clear justification for the statement
that recovery for negligent infliction of emotional distress has been limited to
instances where the plaintiff was a bystander to an accident. Likewise, the citation




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                             SUPREME COURT OF OHIO




in High to Criswell lends valuable insight into the statement that a right to recovery
has also been recognized in instances where the plaintiff was placed in fear of
physical consequences to his or her own person.
       {¶ 20} In Criswell, a mother took her three-and-one-half-year-old daughter,
Veronica, to Brentwood Family Health Center ("Brentwood") because the child had
been complaining of a vaginal itch and stomach pains. A physician examined
Veronica and noticed a yellow discharge in the vaginal area. The physician ordered
cultures to determine if the child had a sexually transmitted disease. The cultures
indicated that the child had chlamydia, and the hospital notified authorities that the
child was a possible victim of sexual abuse. Subsequently, the child and her family
visited a different hospital where it was determined that the child did not have
chlamydia. Thereafter, the family initiated suit against Brentwood for negligent
infliction of emotional distress. The trial court granted summary judgment in favor
of Brentwood.
       {¶ 21} In Criswell, the Court of Appeals for Cuyahoga County affirmed the
judgment of the trial court and rejected the notion that Schultz and Paugh permit
recovery for negligent infliction of emotional distress in instances where the
plaintiff did not witness or experience a violent accident or appreciate a real and
existing physical peril:
       "In Paugh and Schultz the plaintiffs either witnessed or experienced a
dangerous accident or appreciated the physical peril and, as a result of this
cognizance, suffered serious emotional distress. The claimed misdiagnosis of
Veronica [the child] put the child in no physical peril.        Ohio case law has
recognized negligent infliction of emotional distress only where there is cognizance
of a real danger, not mere fear of nonexistent peril. See 

Paugh, supra;

Schultz, supra.

 * * *
       "* * *




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                                     January Term, 1995




        "The courts of Ohio have not expanded this cause of action to include
apprehension of a non-existent physical peril, nor will we. * * *" (Emphasis
added.) Criswell, 

49 Ohio App.3d at 165-166

, 

551 N.E.2d at 1317-1318

.
        {¶ 22} Thus, the court in Criswell specifically acknowledged that Schultz
and Paugh limit recovery for negligent infliction of emotional distress to instances
where the plaintiff has either witnessed or experienced a dangerous accident or
appreciated the actual physical peril. Our citation to Criswell in High, 

64 Ohio St.3d at 85

, 

592 N.E.2d at 820-821

, strongly suggests that we adhere to that
interpretation of Paugh and Schultz. Further, our research indicates that the courts
throughout this state interpret Paugh and Schultz in a similar manner. See, e.g.,
King v. Bogner (1993), 

88 Ohio App.3d 564, 569

, 

624 N.E.2d 364, 367

 (Ohio case
law recognizes negligent infliction of emotional distress only where the plaintiff is
cognizant of a real physical danger to herself or another.); Massie v. Dayton Power
& Light Co. (Sept. 21, 1992), Fayette App. Nos. CA91-10-021 and CA91-11-025,
unreported (same); Dawoudi v. Ullman Oil, Inc. (Mar. 25, 1994) Geauga App. No.
93-G-1782, unreported (same); and Huston v. Morris (Mar. 12, 1991), Franklin
App. No. 90AP-1009, unreported ("Under Ohio law, claims for negligent infliction
of serious emotional distress are cognizable only where the plaintiff or someone
closely related to the plaintiff faced actual physical peril.").3
        {¶ 23} Nevertheless, appellant maintains that Schultz and Paugh recognize
the right of a plaintiff to maintain a cause of action for negligent infliction of
emotional distress whenever the plaintiff's emotional injuries are serious and a
reasonably foreseeable consequence of the defendant's negligence. Again, we do
not interpret these cases that broadly. Appellant also suggests that permitting


3. We note, in passing, that there does exist some case law in this state recognizing certain
exceptions to the actual-peril requirement. See, e.g., Carney v. Knollwood Cemetery Assn. (1986),

33 Ohio App.3d 31, 33-34

, 

514 N.E.2d 430, 432-433

 (permitting recovery for negligent infliction
of emotional distress where defendants were responsible for desecration of a grave). However, none
of the exceptions applies to the case at bar.




                                               11
                             SUPREME COURT OF OHIO




recovery for negligent infliction of serious emotional distress only where the
plaintiff is cognizant of a real danger to herself or another is arbitrary and
unreasonable.    However, we find it difficult to imagine a restriction more
reasonable than one which prohibits recovery where the distress suffered by the
plaintiff is associated with the plaintiff's fear of a nonexistent peril.        Thus,
appellant's arguments are not persuasive.
       {¶ 24} Accordingly, we hold that Ohio does not recognize a claim for
negligent infliction of serious emotional distress where the distress is caused by the
plaintiff's fear of a nonexistent physical peril. In so holding, we specifically reject
appellant's contentions that such a restriction on the right to recover for negligent
infliction of serious emotional distress should be limited to cases where the plaintiff
was a bystander to an accident as opposed to a direct victim of the tortfeasor's
negligence. We do not believe that any such distinction is warranted.
       {¶ 25} Appellant also contends that recovery should be allowed for
emotional distress even in the absence of real physical peril where, as here, the
plaintiff's emotional distress is engendered by a physician's diagnosis of a "fatal
disease." However, we are not persuaded on the facts of this case to deviate from
the governing law. Nor are we prepared to create a "subspecies" of the tort of
negligent infliction of emotional distress that applies only in the context of the
patient-physician relationship.
       {¶ 26} As a final matter, we do not in any way dispute the legitimacy of
appellant's claims that she suffered serious emotional injuries when diagnosed HIV
positive. We have no doubt that the emotional injuries suffered by this appellant
were real and debilitating. However, the facts of this case remind us that not every
wrong is deserving of a legal remedy. Appellant was not HIV positive and never
faced an actual physical peril as a result of appellees' alleged negligence. While we
remain vigilant in our efforts to ensure an individual's "right to emotional




                                          12
                                 January Term, 1995




tranquillity" (see Paugh, 

6 Ohio St.3d at 74

, 6 OBR at 116, 

451 N.E.2d at 763

), we
decline to expand the law to permit recovery on the facts of this case.
        {¶ 27} For the foregoing reasons, we affirm the judgment of the court of
appeals.
                                                                   Judgment affirmed.
        MOYER, C.J., WRIGHT, F.E. SWEENEY and HADLEY, JJ., concur.
        RESNICK and PFEIFER, JJ., dissent.
        RONALD E. HADLEY, J., of the Third Appellate District, sitting for COOK, J.
                               __________________
        ALICE ROBIE RESNICK, J., dissenting.
        {¶ 28} As an initial matter, I recognize that any method of HIV testing will,
on some occasions, inevitably yield false-positive results. I further recognize that
to allow recovery on a claim for negligent infliction of serious emotional distress
each time a false-positive result is reported would in effect be imposing strict
liability on those who conduct and interpret the tests, when false-positive test results
are produced at times without negligence. Thus, there can be no recovery for a
plaintiff who can prove nothing more than that he or she received a report of a false-
positive test, although that report understandably would induce anxiety to that
recipient.
        {¶ 29} Having set forth my general agreement that some standards are
necessary to govern recovery in a case such as this, I cannot agree with the majority
that a blanket prohibition of recovery in false-positive cases is appropriate. Rather,
the traditional tort law concepts of duty, breach of duty, proximate cause, and
damages can serve to effectively limit recovery to those plaintiffs who deserve it,
as in any other negligence case. In addition, consistent with Paugh v. Hanks (1983),

6 Ohio St.3d 72

, 6 OBR 114, 

451 N.E.2d 759

, additional limitations on recovery
for negligent infliction of serious emotional distress ensure that the emotional
distress must be both serious and foreseeable before recovery is allowed. Because




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                             SUPREME COURT OF OHIO




adequate limits therefore already exist on the tort of negligent infliction of serious
emotional distress, I see no reason to impose the additional "real danger"
requirement established by the majority.
       {¶ 30} Construing the sketchy facts in this case in a light most favorable to
appellant, as we must for purposes of Civ.R. 56(C), reveals that appellant alleged
more than the mere fact that she received a report of a false-positive HIV test. She
alleged that the testing was negligently conducted, in part because the apparently
faulty original sample was retested when a new sample should have been drawn
immediately for the retest. She also alleged that the test results were negligently
conveyed to her, in that Dr. Moretuzzo informed her of the devastating news over
the telephone, rather than in a face-to-face meeting. It is evident, therefore, that
appellant sufficiently raised a jury question regarding appellees' negligence based
on the sparse record that had been developed at the time the trial court granted
summary judgment to appellees. I would reverse the judgment of the court of
appeals and remand this cause to the trial court for further proceedings, to allow for
further development of the record. Because the majority finds that appellant is a
member of a class of plaintiffs who cannot recover as a matter of law, I dissent.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                               __________________




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