Negligence Is Emotional Issue in Court

It is every parent’s worst nightmare. A son or daughter is playing outside near the street. Suddenly, you hear a screech of tires, a crash. A speeding car has jumped the curb and hit your child. You rush outside and find him unconscious, bleeding. You take him to the hospital, but even when he recovers, you never forget the moment. The trauma haunts you, leaving you nervous, emotionally upset, in need of intensive therapy.

This hypothetical scenario is not only a nightmare for parents, it has plagued judges and lawyers for decades as they have tried to determine the legal liability of a negligent driver who causes an auto accident. Should that person be made to compensate the parent or other relatives and friends for the emotional distress arising from the accident?

In 1968, the California Supreme Court decided a landmark case, Dillon vs. Legg, in which it ruled that a mother who witnessed the death of her child in an auto accident may recover from the negligent driver for her emotional distress, even though the mother was not in any danger at the time of the accident.

Before that case, California refused to award damages for emotional distress or shock resulting from danger or injury to another.

In creating the new law, the court focused its analysis on the “foreseeability” of the emotional injury. The court said it was foreseeable that a mother who was standing next to her son when he was struck by a negligently driven car would suffer emotional injuries, and that the driver, therefore, had a legal duty to the mother.

Of course, emotional distress is foreseeable in countless instances in which a third party is negligently injured.

For example, a friend or an acquaintance may be traumatized after witnessing an accident. And parents will suffer emotional distress from a child’s injury even if they did not witness the accident, whether they arrived on the scene a few moments later or simply heard about it by phone.

There had to be limits on the possible recovery, so the Dillon court said judges should decide, on a case-by-case basis, what was reasonably foreseeable.

In the Dillon case, the mother actually saw the accident happen and also suffered physical damage as a result of her emotional distress. The court noted that these were significant factors in finding a legal duty. Later court decisions expanded liability to cases in which the plaintiff was not present at the moment of impact and did not suffer physical symptoms of the emotional distress.

An example of the broadened liability involved a mother searching for her 3-year-old son. She heard someone scream his name and realized that the child had fallen into a neighbor’s pool. When she arrived on the scene, he was already being given cardiopulmonary resuscitation. Even though she was not present at the time of the accident, the court allowed her to sue the neighbor for negligent infliction of emotional distress, the legal name of this type of lawsuit.

The law was clarified last April when the California Supreme Court--in a case called Thing vs. La Chusa--severely limited the types of cases in which recovery would be allowed.

In simple terms, and without explaining some of the legal technicalities, in order to win damages, the court said, a plaintiff must be closely related to the injury victim, be present at the scene and aware of the injury at the time it occurs, and suffer serious emotional distress beyond what a disinterested witness might suffer, and which is not an abnormal response.

What this means for future cases is still open to interpretation.

The court opted for a “bright line” legal rule to lessen uncertainty and moved away from the somewhat vague legal test of “reasonably foreseeable.” At the same time, however, as the dissenting opinion noted, “it will deny recovery to victims whose injuries from the negligent acts of others are very real.”