This is the case of Philibert v. Kluwer

Fact:

Judgment:

Issue:

Holding:

General Analysis

Applied Analysis

l Philibert V. Kluser 385 P.3d 1038 (Ore. Sup. Ct. 2016) Three brothersages 12, 8, and 7, respectivelywere crossing a street together in an Oregon city. While the brothers were in the crosswalk with the stoplight 's walk signal in their favor, Dennis Kluser drove his pickup truck through the crosswalk. The truck ran over the 7-year-old boy and narrowly missed the other two. The brother who was struck died at the scene. The other two boys witnessed their brother's death. Acting in her capacity as guardian ad litem for the surviving brothers, Stacy Philibert brought a negligence lawsuit against Kluser. (Because Philibert brought the case for the benet of the 12- and 8-year-old brothers, they will often be referred to as \"the plaintis\" in this statement of facts and in the edited version of the court's opinion.) The complaint alleged that as a result of wit- nessing their brother's death, the boys experienced severe emotional distress, depression, post-traumatic stress disorder, aggression, and severe anxiety. The defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted He argued that because the plaintiffs were bystanders who had experienced neither a physical injury nor a physical impact in the accident, they could not recover for their emotional distress. The trial court granted the dismissal motion. The plaintls appealed to the Oregon Court of Appeals, which airmed the trial court's ruling. The plaintts then appealed to the Supreme Court of Oregon. Balmer, Chief Justice of a family member who was run over by a truck, but were not This case requires us to consider the circumstances, if any, under themselves physically injured. They sought recovery for their which damages may be recovered by a bystander who suffers emotional distress. The trial court dismissed the action and the serious emotional distress as a result of observing the negligent Court of Appeals afrmed, both relying on the \"impact rule.\" physical injury of another person. Plaintiffs witnessed the death The impact rule allows a plaintiff to seek damages for negligently caused emotional distress only if the plaintiff can show some physical impact to himself or herself, We must decide whether the rule applies here or whether, under the the circumstances present here, the plaintiffs] should be able to pursue their claims notwithstanding the fact that they did not suffer physical injury [or a physical impact]. [In their decisions, the trial court and the Court of Appeals re- lied on Saechao v. Matsakoun, 717 P.2d 165 (Ore. App. 1986).] In Saechao, the Court of Appeals confronted a situation factu- ally similar to the present case. A driver negligently drove a car onto a sidewalk, killing one child, striking a sibling, and leaving two additional siblings untouched. The three surviving children sued to recover for the emotional distress caused by witnessing their brother's death. The court recognized the case as present- ing a question of first impression[:] \"[whether, and if so, when] a person who witnesses the negligently caused injury or death of a member of the immediate family may recover damages for seri- ous emotional distress resulting from witnessing the accident.\" A divided court adopted the impact rule, requiring that there be \"a direct accompanying [physical] injury to the person who suffers the emotional distress as a prerequisite to its compensability.\" As a result, the child who was physically injured was permit- ted to seek emotional distress damages caused by witnessing his brother's death, but the claims by the two siblings who were not physically injured were dismissed. The Court of Appeals has continued to follow the impact rule in subsequent cases, as it did here. We directly address the bystander recovery issue [in this court] for the first time. In Norwest v. Presbyterian Intercommum'ty Hospital, 652 P.2d 318 (Ore. Sup. Ct. 1982), we mapped the landscape of cases addressing claims for emotional distress damages. Ore- gon allows plaintiffs to recover damages for emotional distress category outlined in Norwest is simply a different way of stating the general rule that emotional distress damages are available to a plaintiff who is physically injured. In contrast to physical harms, emotional harms occur fre- quently. Any number of people may suffer emotional distress as the foreseeable result of a single negligent act. The Restate- ment (Third) of Torts provides an example: \"[A] negligent air- line that causes the death of a beloved celebrity can foresee genuine emotional harm to the celebrity's fans, but no court would permit recovery for emotional harm under these circum- stances.\" Restatement (Third) 48, cement g. For that rea- son, foreseeability, standing alone, is not a useful limit on the scope of liability for emotional injuries. Without some limiting principle in addition to foreseeability, permitting recovery for emotional injuries would create indeterminate and potentially unlimited liability. Nevertheless, even where a plaintiff has not been physically harmed, recovery for foreseeable emotional damages is available when the defendant's conduct \"infringed some legally protected interest apart from causing the claimed distress.\" Norwest, supra. In the context of emotional distress, a legally protected interest is \"an independent basis of liability separate from the general duty to avoid foreseeable risk of harm.\" [Citation omitted] The right to recovery for such injuries does not \"arise from infringement of every kind of legally protected interest, but from only those that are of sufficient importance as a matter of public policy to merit protection from emotional impact.\" [Citation omitted] See, e. g., Havis v. City of Burns, 415 P.2d 29 (Ore Sup. Ct. 1966) (allow- ing claim for emotional damages on the basis of infringement of right of a surviving spouse to have the remains of a deceased spouse undisturbed). In contrast, this court has denied recov- ery to plaintiffs for emotional injuries resulting from a defen- when they are physically injured, and when the defendant acted intentionally. At issue here is a third basis recognized in Nor- west for recovery of damages for emotional distress: when a defendant negligently causes foreseeable, serious emotional distress and also infringes some other legally protected inter- est. The plaintiff's claim in that circumstance partially resem- bles [other] negligence claims in that it rests on the concept of foreseeability. Norwest made clear, however, that the injury's foreseeability, standing alone, is insufficient to establish the defendant's liability: there must also be another legal source of liability for the plaintiff to recover emotional distress damages. Those two concepts identified in Norwestforeseeability and the source of a legally protected interestguide our analysis in this case. Perhaps the simplest legally protected interest is that to be free from physical harm at the hands of another. Labeling free- dom from physical harm as a legally protected interest for pur- poses of recovering emotional distress damages under the third dant's negligence when there is no independent legal source of liability. See, e.g., Hammond v. Central Lane Communications Center, 816 P.2d 593 (Ore. Sup. Ct. 1991) (denying recovery to wife who claimed emotional injury caused by watching husband die from heart attack while 911 system negligently delayed re- sponse, because she had not \"point[ed] to some legally protected interest of hers that defendants violated\"). We now turn to the bystander's claim for negligently inicted emotional distress. Plaintiffs assert a common law right of a by- stander to avoid observing the physical injury of a close family member as [an important enough legal interest] to support their claims. This court has not had occasion to previously consider such a bystander claim. Our prior cases, however, have allowed claims for negligently inicted emotional distress to proceed when the court has determined that an asserted common law interest is sufficiently important to support the imposition of 1i- ability. The negligent handling of a spouse's remains in How's [is an example]. In our view, the interest in avoiding being a witness to the negligently caused traumatic injury or death of a close family member is similarly important. Witnessing sudden physical injury or death is a palpable and distinct harm, different in kind even from the emotional distress that comes with the inevitable loss of our loved ones. Plaintiffs here watched as their younger brother was crushed by a pickup trucka vio- lation of their interest in not witnessing such a shocking and tragic event. And the resulting impact on them might be de- scribed as the emotional equivalent of a physical injury. We have no difficulty concluding that plaintiffs have alleged the violation of a legally protected common law interest to be free from the kind of emotional distress injury caused by defen- dant's negligence here. Our remaining task is to frame the contours of that interest and identify the elements that will allow a bystander to re- cover for the negligent infliction of emotional distress, while also providing a limiting principle that will avoid potentially unlimited claims or damages. To do so, we consider three tests that courts commonly have used in similar cases: the im- pact test, the zone of danger test, and the Restatement (Third) approach. The Impact Test The impact rule allows a plaintiff to recover for emotional dis- tress when he or she also has suffered a physical injury [or at least a physical impact]. The Court of Appeals in Saechao ap- plied that general rule to bystander cases. Proponents of the im- pact rule claim that its merit lies in the bright line test for liability that it creates [and in the] \"guarantee that the mental disturbance is genuine.\" [Citation omitted] The impact rule bars plaintiffs who have suffered genuine serious emotional distress from recovering and fails to treat like cases alike. We therefore reject the impact rule as the test for a bystander's recovery of emotional distress resulting from injury to another. The Zone of Danger Test Plaintiffs suggest that we permit their recovery under the zone of danger test, which is used by some courts to allow recov- ery to a plaintiff who experiences \"serious emotional distress due to witnessing a fatal injury to a third person only if the plaintiff was personally within the zone of danger of physical impact from the defendant's negligence.\" [Citation omitted.] Although the zone of danger test found some favor, California notably abandoned [it] in Dillon v. Legg, 441 P.2d 912 (Cal. Sup. Ct. 1968). In that case, a child's sister, standing close by, and her mother, standing down the block, observed a negli- gent driver kill the child. The court rejected the zone of danger rule and allowed both witnesses to proceed with their claims for emotional distress. The court explained that rejecting the zone of danger test logically follows rejecting the impact test. Neither test actually relates to the likelihood or severity of the emotional distress that can result from seeing a close family member suffer serious injury. In practice, the zone of danger test results in unfairly deny- ing recovery to plaintiffs who are located outside the zone of physical danger, but witness the physical injury to the third per- son just the same as if they had been in that zone, as the facts of Dillon demonstrate. We are persuaded by the reasoning of the California Supreme Court in Dillon and decline to adopt the zone of danger test. ,- UVJVWW- , The impact rule is problematic, however, because it sets a bar to recovery in bystander cases that can be both too high and too low. The bar is often too high because there is no principled reason to deny recovery for negligently caused emotional in- jury simply because the physical contact was with a third per- son rather than the plaintiff. The facts of this case illustrate that point. Plaintiffs witnessed the traumatic death of their brother, but under the impact rule were denied recovery because the truck did not touch them. Yet, their distress at witnessing the death of their brother is likely unrelated to the coincidental fact that the truck did not hit them also. To deny recovery because . . . the plaintiffs [were not] physically injuredwhen even a minor physical impact is sufficient under that testseems ar- bitrary and fails to protect plaintiffs' interest in avoiding wit- nessing the negligently caused death of their brother. At the same time, the impact rule sets the bar too low in other cir- cumstances, because a minor injury unrelated to the emotional distress satisfies the impact requirement and permits the claim to proceed. I.""""\" vrriv-vvu The Restatement (Third) Rule A number of authorities have attempted to articulate a test for bystander recovery that avoids the somewhat arbitrary aspects of the impact and zone of danger tests, while limiting the po- tential for indeterminate and excessive liability for emotional distress claims. Probably the most thoughtful recent formula- tion is found in the Restatement (Third) of Torts 48, which builds on Dillon and similar cases. Under that approach, a de- fendant \"who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who (a) perceives the event contemporaneously, and (b) is a close family member of the person suffering the bodily injury.\" Restatement (Third) 48. In our view, that test hews closely to the interest that should be legally protected, while also recognizing necessary limits on potential liability and providing at least some guidance to courts and juries. Moreover, the Restatement (Third) test is generally consistent with this court's cases dealing with other aspects of claims for negligently caused serious emotional dis- tress. We turn to a closer examination of the rule articulated in the Restatement (Third). The first element is that the bystander must witness a sudden, serious physical injury to a third person negli- gently caused by the defendant. Hammond presented a situa- tion in which that element was not present. There, the plaintiff awoke to find her husband lying on the floor, apparently the victim of heart attack. The plaintiff sought to recover for her severe emotional distress, alleging that if the defendant 911 service had arrived in the \"couple of minutes\" that the 911 operator predicted, rather than after the 45 minutes that actually elapsed, she would not have suffered emotional distress. This court did not allow recovery. Although the defendant may have contributed to the death by failing to respond quickly enough, the defendant did not cause the actual physical injurythe heart attack. Second, the plaintiff must have suffered serious emotional distress. It is a truism that emotional distress is an unavoid- able and essential part of life. For that reason, our cases allow compensation for only serious emotional distress. A bystander who experiences emotional harm that does not rise to the level of serious emotional distress, therefore, cannot re- cover for that harm. Third, in order to recover, the plaintiff must have perceived the events that caused injury to the third person as they occurred. This contemporaneous perception is at the core of the bystander's action for damages. Observation of the scene of an accident after it has happened, or perceiving a recently injured person, does not meet this requirement. This bright line rule is justified in part by the fact that the distressing life experience of learning about the death or injury of a loved one is unavoidable. In comparison, the not sufficient to recover. The fraternal relationship of plaintiffs here to the person killed meets that requirement, but other cases may present closer questions as to the meaning of \"close family member.\" See Restatement (Third) 48 (\"[A] grandparent who lives in the household may have a different status from a cousin who does not\"). We recognize that the bystander recovery rule outlined in the Restatement (Third) may give rise to the possibility of false or inflated claims and that aspects of the rule may seem arbitrary. For as long as courts have awarded damages for emotional injuries, there have been concerns about plain- tiffs bringing false claims. Juries are charged with discerning truth from self-serving fiction when plaintiffs testify about their own injuries and are as competent to do this in claims for emotional injuries as they are in other cases. The Restate- ment (Third) rule [includes] elements that, on the basis of human experience, are objective indicators of possibly seri- ous emotional injury. When the elements of the test are met, a plaintiff's claims of subjective emotional distress are more likely to be genuine. The Restatement (Third) rule may have the effect of permit- ting some claims that would be rejected under other tests, and vice-versa. In this area of the law in particular, some arbitrari- ness cannot be avoided. But although the rule may be arbitrary in some circumstances, it \"serve[s] a function and [is] neither ran- dom nor irrational.\" Restatement (Third) 48, comment g. The undesirable arbitrary aspect of rules must be balanced against the need to provide ex ante understanding of liability and assistance in the orderly administration of justice. We return to the facts of this case. Plaintiffs are two brothers who watched their brother die as a result of being hit by defen- dant's negligently driven pickup truck. They allege emotional a loved one by a negligent driver, as here, is not a certain part of life and therefore presents a stronger basis for allowing recovery against the tortfeasor. The final element of the claim is that the physically injured person be a close family member of the plaintiff. Witnessng the injury of a stranger or acquaintance, while likely distressing, is Examined in the light of the Restatement (Third) test set forth above, plaintiffs here state a negligence claim for recovery of emotional distress damage. Court of Appeals decision reversed; case remanded to trial court for further proceedings