The Minnesota legal community is absorbing the potential impact of the Supreme Court’s recent expansion of the negligent infliction of emotional distress (NIED) tort.
In Engler v. Illinois Insurance Co., the court held that a bystander in the “zone of danger” of physical impact may recover damages for distress caused by fearing for another’s safety or for witnessing an injury to someone with whom he or she has a close relationship.
The high court limited such recoveries to cases in which bystanders display a physical manifestation of their distress and to cases in which the third-party victim suffered death or serious bodily injury.
The court also carefully defined the issue presented in the case as “narrow,” explicitly stating that it was not creating a new cause of action, only expanding the scope of damages recoverable in an NIED claim.
Duluth defense attorney John D. Kelly told Minnesota Lawyer that while that while the court “moved the ball a little bit” with respect to NIED, it was not a dramatic move.
“The court described it as a modest modification,” he said. “The [justices] believe, and I think they are right, that the decision will affect a very limited number of cases. … I’d be surprised if anyone got too ‘up in arms’ about it.”
But plaintiffs’ attorneys are pleased that the court made at least some movement toward compensating bystanders.
“It’s a step at least,” said Minneapolis plaintiffs’ attorney Sharon L. Van Dyck. “It’s a recognition of the reality of those damages — the harm from witnessing injury to a loved one — that wasn’t present before.”
In the zone
The Engler decision stemmed from an incident that occurred in April 1997, when a mother witnessed her young son get hit by a car and sustain serious injuries. The vehicle nearly hit the mother before coming into contact with the child.
The mother’s claim for NIED against the driver of the car was thrown out, but the trial judge certified to the Court of Appeals the question of whether such a claim could be maintained. The Court of Appeals said no, but after the Supreme Court accepted review of the matter, it settled.
The plaintiff’s subsequent claim for underinsured motorist benefits was dismissed by the trial judge and affirmed by the Court of Appeals.
But the Supreme Court reversed, finding that plaintiffs who witness injury to another may recover for NIED if they can prove the four elements of a negligence claim (i.e. duty, breach, injury and proximate cause), and that they:
• were in the zone of danger of physical impact,
• reasonably feared for their own safety,
• suffered severe emotional distress, and
• stand in a close relationship with the injured party.
The plaintiff must also establish that the defendant’s conduct caused serious bodily injury to the third-party victim.
“It’s a logical extension of the law given the history of that tort,” acknowledged Minneapolis defense attorney Gregory P. Bulinski, president of the Minnesota Defense Lawyers Association.
While plaintiffs’ personal injury attorneys are pleased that the court expanded the scope of the damages available in an NIED claim, they expressed some dismay that the decision was so narrowly drawn.
“It was certainly good to see the court take this step and expand [NIED] but it’s too bad it didn’t go with the California version of the tort … in which the bystander need not be in the zone of danger,” said Appleton attorney Brian Wojtalewicz.
Under Engler, if the father had witnessed the same incident as the mother but was on the other side of car and therefore not in the zone of danger, he could not recover, Wojtalewicz explained.
“The zone of danger rule strikes me as unjust,” he said. “It’s an artificial requirement.”
Minneapolis attorney Wilbur W. Fluegel, president of the Minnesota Trial Lawyers Association, added that it would have been “interesting” if the court had adopted California’s foreseeable bystander test, which is used by almost 30 other states. “But it’s easier to extend the existing zone-of-danger test than to adopt a new test even though it is used by so many jurisdictions,” he said.
Van Dyck was particularly disappointed in the court’s requirement that bystanders fear for their own safety. “The court’s concern is that it doesn’t want a bunch of fraudulent claims,” she said.
“But I think juries can figure that out. … This is not the way to take care of that problem.”
Van Dyck explained that she once handled a case where parents were pushing their baby in a carriage when it was struck by a car. The child was killed. The parents were arguably within the zone of danger, but they testified that their only concern was for their child, not themselves.
Under Engler, they could not recover for NIED because they asserted they didn’t fear for their own safety, Van Dyck pointed out. It should be enough to show that the bystander witnessed the accident and that he or she had a close personal relationship to the injured third party, she said. “I think those are jury questions.”
Plaintiffs’ lawyers were pleased, however, that the high court declined to follow the advice of Justice G. Barry Anderson, who wrote in his concurrence that the claim should be limited to situations in which the injured party is the witnessing bystander’s spouse, parent, grandparent, grandchild or sibling.
Instead, the majority specifically refrained from defining the precise contours of the “close relationship” requirement.
Fluegel asserted that this determination is an element for a jury rather than an arbitrary list to be assessed by a judge.
“The common law should be adaptable and not arbitrary,” he said. “An exclusive list of who may sue seems contrary to the breadth of human relationships to which injury to a loved one can legitimately cause emotional distress.”
But Bulinski believes that the court’s failure to specifically define the parameters of the requirement will take up precious court time.
“Communication of a readily identifiable standard would give guidance that would avoid future litigation over the close relationship issue,” he said.
“The court’s decision to not create a firm definition will take up an inordinate amount of judicial resources.”
Personal injury plaintiff and defense attorneys seem to agree on one thing, however — that the Engler decision does not invite a “floodgate” of new litigation.
“Factually, there just aren’t that many of these cases,” Wojtalewicz pointed out.
According to Fluegel, the requirements that the nature of injury witnessed by the bystander be death or serious bodily injury and that there be a close relationship between the bystander and the injured party will eliminate many potential claims.
“It’s a closely-fashioned test to validate legitimate claims and minimize the chance for speculative ones,” he said.
Kelly also doesn’t view the decision as a “floodgates” case. “The Supreme Court worked hard at crafting this decision. The admonishment of what it means will be heeded by trial courts,” he said.
Similarly, Bulinski agreed that the decision will be viewed and applied narrowly by the courts. “I think that whenever there is an expansion of the common law, it is important to send a message that there are limits, so that we don’t invite additional litigation on that issue.”
The Supreme Court specifically noted in the Engler decision that it has historically been cautious “in expanding the NIED tort.” Attorneys contend there is a reason for the court’s caution.
“I think the court believes there is something about this tort that will lend itself to fraud,” Wojtalewicz told Minnesota Lawyer. “It’s a distrust of emotional distress as damages.”
The problem, according to practitioners, is that emotional distress doesn’t show up in X-rays or other forms of concrete evidence so courts must instead rely primarily on the testimony of the claimant.
“The court thinks this is fertile ground for fraud,” Wojtalewicz noted.
Bulinski agreed. “It’s like any other area of law where the elements are softer, or less objective. There is a reluctance to open the door to additional litigation.”
According to Kelly, there has been a longstanding sense that the determination of what constitutes emotional distress creates all kinds of issues. “The court was careful to speak about authenticating these claims and I think that has been at the root of how courts have handled these claims all along,” he said.