Plaintiffs appeal from the trial court's dismissal of their actions on the grounds of failure to state a claim upon which relief could be granted.1 Rule 12(b)(6), Federal Rules of Civil Procedure.

The facts for purposes of this review are those alleged in the plaintiffs' complaints. On March 2, 1970, the plaintiffs admitted their son to Childrens Memorial Hospital, Omaha, Nebraska. He remained under the care and treatment of the hospital and the defendant doctors until he died on April 2, 1970. The plaintiffs allege that the defendants negligently failed to properly diagnose, treat and care for their son. They allege that they were in close proximity to their son throughout the period of his hospitalization and that they personally witnessed the negligence and malpractice of the defendants, and the physical and mental suffering of their son. They allege that as a direct and proximate result of the defendants' negligence, they suffered and continue to suffer physical and mental anguish, great emotional disturbance, shock and injury to their nervous system.

The sole issue is whether, under Nebraska law, a parent can recover damages for the mental distress accompanied by physical injury resulting from witnessing the suffering of his child, which, in turn, was caused by the negligence of the child's physicians and hospital personnel.

Nebraska law governs this diversity action. See, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The trial court was of the view that Nebraska statutory law did not permit recovery and concluded, from its review of Nebraska case law, that a common law action for such damages was not permissible.

The crucial question is whether the trial court was correct in holding that the Nebraska Supreme Court's decision in Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937), rehearing denied, 135 Neb. 232, 280 N.W. 890 (1938), is not controlling here. There, the defendant negligently sold an unlabeled sack of poisoned bran to Rasmussen, a dairy farmer. Rasmussen fed the bran to his milk cows; a number of them died and others became sick. Concerned for the customers to whom he had already delivered the milk which had come from the sick animals and depressed and heartbroken from the loss of his entire dairy business, the farmer suffered a decompensated heart and ultimately died. Before dying, he brought a suit against the defendant for damages, including his pain and suffering. In the action, which continued after his death, the defendant was found to be negligent and Rasmussen's estate was allowed to recover for the physical consequences of his emotional disturbances.

The trial court held that Rasmussen was not on point. It agreed that the case stands for the abolishment of the impact doctrine in Nebraska, but argues that the doctrine was abandoned only where the plaintiff was directly imperiled by the defendant's negligent act. The court recognized that a broad reading of Rasmussen would permit recovery here, but stated that the Nebraska Supreme Court had indicated in the opinion that the case was to be read narrowly and confined to its facts.2 It then distinguished this case from Rasmussen. It reasoned that Rasmussen suffered, not as a result of witnessing negligence to another person, but for the loss of his own dairy business, which represented his total life savings and energy. Moreover, the court noted that Rasmussen has not been cited by the Nebraska courts since being handed down, and suggested from that fact that Rasmussen was an anomaly in Nebraska law.

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The court reasoned that even if one assumes that the plaintiffs could prove that a sufficient "physical injury" has resulted from the emotional disturbance and mental anguish, there was no cognizable cause of action here because the plaintiffs, themselves, had not been the direct objects of the defendants' negligent acts. It further stated that even if the Nebraska Supreme Court were to allow recovery without impact where the plaintiff was a witness to the peril of another, rather than the direct object of the peril, the court would permit recovery only if the plaintiff had been either within the "zone of physical danger" or put in fear for his own safety.

While we are not bound by the trial court's view of local law, we must give special weight to it.3 Larry Luke, et al. v. American Family Mutual Insurance Company, Nos. 71-1348, 71-1374, 476 F.2d 1015, at 1019 (8th Cir., 1972), aff'd on rehearing en banc (1973). In the light of that doctrine, we are constrained to accept the trial court's interpretation of Nebraska law and affirm its decision.

The denial of recovery is consistent with the position taken in the Restatement (Second) of Torts, Secs. 313 & 436 (1965), and by the overwhelming majority of the courts in the United States.4 See, Annot., 29 A.L.R. 3d 1337 (1970); see, e.g., Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D. 1972); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). In the face of this authority, we are reluctant to say that the Nebraska Supreme Court would extend the liability of doctors and hospitals for malpractice beyond the individual patient involved where: (1) there was no impact, (2) the plaintiff was neither in the "zone of danger" nor feared for his own safety, and (3) the incident was slowly unfolding rather than traumatic. To do so, we believe would result in us creating a public policy for Nebraska which would not be adopted by their own courts. We note that the plaintiffs may not be without an alternative remedy here. The Nebraska Supreme Court has recently ruled that damages for the loss of the society, comfort and companionship of a minor child may be recovered under the Nebraska Wrongful Death Statute. See, Selders, Admr. v. Armentrout, Neb., 207 N.W.2d 686 (1973).

Affirmed.