Feature Article
Winter, 2009 |
CLAIMS LAW
A SUPPLEMENT TO CLAIMS LAW COURSES IN CASUALTY, PROPERTY, WORKERS
COMPENSATION, FRAUD INVESTIGATION AND AUTOMOBILE |
BYSTANDER EMOTIONAL DISTRESS CLAIMS
[Ref: Tort Theories and Defenses, Para. 2.03]
The Colberts were awakened at 3 a.m. by a ringing telephone. They learned that their 21-year-old daughter who had been boating at a nearby lake was missing. Mr. Colbert immediately drove to the lake to find that police, fire department, and ambulances had already arrived. From approximately 100 yards away, he watched a boat search for his daughter and, at approximately 6 a.m., he saw a buoy float to the lake’s surface, signifying that a body had been found. He saw his daughter’s body pulled by her arm over the side of the boat, and saw the police bring a stretcher and place a sheet over her body. It was later learned that she drowned as a result of carbon monoxide poisoning from the boat’s exhaust. In addition to a wrongful death action against the boat manufacturer, Mr. Colbert sued as a bystander for negligent infliction of emotional distress. The Washington Supreme Court, in Colbert v. Moomba Sports, Inc., 176 P3d 497 (Wash. 2008), dismissed the bystander claim because, among others things, Mr. Colbert was not at the accident scene at the time of the accident, nor did he see his daughter’s injuries “shortly after” they occurred. The court explained that Washington law requires that the plaintiff experience “conditions that can be said to be a continuation of ‘an especially horrendous event’,” such as “a crushed body, bleeding, cries of pain, or dying words.”
Several months later, the Tennessee Supreme Court decided a somewhat similar bystander claim. In Eskin v. Bartee, 262 SW3d 727 (Tenn. 2008), Ms. Eskin learned that her son, Brendan, had been hurt in an accident at school. Assuming that it was a minor accident, Ms. Eskin and her younger son drove to the school where they found Brendan lying on the pavement in a pool of blood. Ms. Eskin and the injured child’s brother filed suit against a number of defendants responsible for the accident, alleging negligent infliction of emotional distress. The Supreme Court of Tennessee ruled that the plaintiffs’ allegations established a prima facie bystander claim because the plaintiffs observed Brendan “in a seriously injured state” at the scene of the accident “shortly after” the accident occurred.
The result was different in each case even though the courts used essentially the same rule. The reason is that the facts of the two cases are slightly different. Both cases involved plaintiffs who arrived on the scene after the accident occurred. In the Washington case, however, the plaintiff did not actually see his daughter until hours afterwards and even then he observed from a distance across a lake. In the Tennessee case, the plaintiffs saw the victim immediately after the accident and from close up.