Consider the following scenario. You are waiting on the corner for a ride from your 20 year old son. As his car legally enters a controlled intersection on a green signal, a speeding truck approaches from the left and ignores a red traffic signal and strikes the driver's side of your son's car. You are not injured, though you witness the entire accident. Your son is hospitalized with severe injuries that will likely leave him with some permanent impairment. The police investigation reveals that the truck driver's blood alcohol level was elevated.
Obviously, the son in the scenario has a viable claim against the other driver for negligence. If successful in establishing liability, he will have the entitlement to claim so-called “special” damages such as unpaid medical expenses, lost wages, rehabilitation costs and other provable out-of-pocket expenses. The entitlement may also include some amount of “general” or “pain and suffering” damages.
While you have no physical injuries, your son's condition has a major impact on your emotional state of mind. This leads to the question, can you sue for damages based on this non-physical harm?
Prior to the late 1970s, Pennsylvania courts would almost certainly have said no. Pennsylvania has long recognized a cause of action based upon the intentional infliction of emotional distress. When the defendant's conduct was negligent, however, the state followed the so-called “impact rule” concerning emotional injury. Unless you are actually struck, you could not sue.
A gradual departure from that rule began in 1970, when the state's Supreme Court affirmed a lower court award of damages to an individual who, while not actually impacted by a speeding car, was within the “zone of danger." By the late 1970s, the “zone of danger” requirement was eliminated, effectively establishing the tort known as negligent infliction of emotional distress.
Under current Pennsylvania case law a plaintiff in a negligent infliction case must prove that:
He or she was nearby when the accident happened.
His or her emotional distress is the result of observing (hearing and feeling, as well as seeing) the accident
He or she and the victim are closely related. Several decisions have held that this requires a familial relationship between the injured person and the plaintiff seeking emotional distress damages
What Constitutes “emotional Distress?
The Pennsylvania courts remain divided on the question of whether the plaintiff's emotional distress must be accompanied by some sort of physical manifestation. Typical physical symptoms accepted as sufficient evidence have included depression, severe headaches and persistent and prolonged sleeplessness. Where physical symptoms do exist, it is unclear whether a plaintiff must produce expert medical testimony linking those symptoms to the plaintiff's traumatic experience.
Observation Must Be Contemporaneous
The plaintiff must have been in a position to actually observe the accident, using one or more senses. Moreover, there must be evidence of physical injury to the plaintiff's family member. Witnessing a “near miss” is insufficient, no matter how stressful the experience. Similarly, distress triggered by notification sometime after the accident will not support a claim.
The Need for Experienced Legal Advice
We have tried to stress that Pennsylvania law regarding negligent infliction of emotional distress continues to develop. As such, to determine whether you have a claim based on injuries to a family member, you need to consult an experienced personal injury attorney who follows recent developments.
NOTE: This is for informational purposes only and does not constitute legal advice.