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Answering a certified question of law for the 9th U.S. Circuit Court of Appeals, the Alaska Supreme Court on March 15 said that a plaintiff who was a participant in the infliction of another’s injuries cannot base a cause of action for negligent infliction of emotional distress on the fact that she was the “unwitting instrument” of someone else’s negligence. Kallstrom v. U.S., No. S-9332. The question arose in a case filed after Blanche Kallstrom, who was attending a social function, poured a drink from a pitcher sitting on the kitchen counter and gave it to a 9-year-old girl with whom she was friendly. Kallstrom thought the pitcher contained fruit juice, but it really contained a caustic, lye-based, dish detergent that permanently injured the girl’s esophagus. Kallstrom claimed she sustained severe emotional distress because of her mistake. Because the event was held at a facility operated by a government contractor, the girl’s mother sued the United States for negligence. When the government filed a third-party suit against Kallstrom, she counter-sued for negligent infliction of emotional distress. But an Alaska federal district court said she had failed to state a claim. On appeal, the 9th Circuit certified the question to Alaska’s highest court, asking whether a non-negligent plaintiff — who has not suffered physical injury — may recover damages for negligent infliction of emotional distress when she was the unwitting instrument through which the defendant negligently caused injury. Answering “no,” the supreme court said Kallstrom could have recovered damages without physical injuries if she had qualified under the bystander or pre-existing duty exceptions, but it refused to create an unwitting-instrument exception. The class of plaintiffs created by such an exception would be so diverse that it would not meaningfully distinguish between claims that should be allowed and those that should not, the court said. Because harm to the plaintiff would not always be foreseeable, the court concluded that public policy considerations weighed against recognizing a duty of due care. Assistant U.S. Attorney Kenneth S. Roosa said it would have been “hard for Kallstrom to raise this theory of recovery on remand even if the court had allowed it.” He said Kallstrom was not exactly innocent, as “the pitcher she poured from had a warning label on it saying ‘XXX do not drink’ and the liquid was of a different color, viscosity and weight from the fruit juice she had been pouring earlier.” Asked if he thought recognizing an unwitting-instrument exception would give people an incentive to inflict harm and then pretend to be innocent to recover damages, he responded, “I would not want to think that an opinion could have that effect. I’m not that cynical.” Neither was Ray R. Brown, a member of Dillon & Findley, the Anchorage, Alaska, firm that represented Kallstrom. “I don’t see it as that much of a danger,” he said, adding, “I think the court was concerned about a floodgate of litigation. It issued a well-reasoned opinion, but I don’t think it had to deny all the cases. It could have allowed trial courts to look at individual cases to see if they were compelling enough.”

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