Link to Mo. Sup. Ct. Opinion
The Missouri Supreme Court held that a truck driver who crashed into a negligent driver and allegedly suffered emotional distress qualified as a “direct victim.” The truck driver had witnessed the body of the deceased daughter of the negligent driver he crashed into. The Court rejected the application of the stricter “zone of danger test” applicable to bystanders, and thus the truck driver was not barred from recovering damages for negligent infliction of emotional distress.[1]
Michael Jones negligently caused a vehicle accident with Tommy Jarrett, a truck driver. Jarrett suffered only minor physical injuries, but brought an action of negligent infliction of emotional distress against Michael Jones. In the aftermath of the accident, Jarrett proceeded toward the Jones’ car and saw the dead body of Jones’ two-year old daughter, which caused Mr. Jarrett’s alleged emotional distress. The trial court granted summary judgment in favor of Jones, holding that Jarrett was a bystander and failed to pass the applicable “zone of danger” test used to determine recovery for negligent infliction of emotional distress. According to the trial court, Jarrett did not present facts that showed he feared for his own safety, a requisite under the “zone of danger” rule.
The Missouri Supreme Court reversed the lower court in a 6-1 decision, rejecting the conclusion that Jarrett was a bystander. Instead, the majority held that Jarrett was a “direct victim”, and thus the zone of danger test was inapplicable. The majority found that the occurrence of the crash and the viewing of the girl’s body were inseparable, making Jarrett a direct victim and not a bystander. Therefore, Jarrett was allowed to recover damages for his emotional distress.
Judge Limbaugh, the sole dissent,[3] criticized the majority’s decision, believing that prior case law was misread and misapplied to the instant case. He found that the crash and the viewing of the dead body were clearly separable. Jarrett stepped out of his vehicle after the crash with minor physical injuries to assess the situation before going over to the Jones’ vehicle. Jarrett admitted that the viewing and not the crash caused his emotional distress. The dissent argued that Jarrett was a bystander at the time of the viewing and must pass the “zone of danger” test applicable to bystanders to recover emotional distress damages. Because Jarrett did not reasonably fear injury to himself, the crux of the “zone of danger test,” Judge Limbaugh would have dismissed Jarrett’s claim.
II. Legal Background
The cause of action for negligent infliction of emotional distress in Missouri has developed significantly during the past few decades. Initially, a plaintiff could be awarded damages for emotional distress only if the emotional injuries were suffered contemporaneously with physical injury, which was known as the “impact rule.”[4] Over the years, however, the Court has made it easier to recover for emotional damages, eventually abandoning the “impact rule” in Bass v. Nooney[5] and later allowing recovery for bystanders in Asaro v. Cardinal Glennon Memorial Hospital.[6]
In Bass, the Court articulated the necessary elements for a plaintiff to recover damages for emotional distress, holding that “(1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress; and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.”[7] Despite the Court’s more liberal approach to plaintiff recovery, the foreseeability limit remained.[8] However, in a footnote, the Court left open the issue of bystander recovery, refraining from discussing the various rules that have developed in different jurisdictions and within Missouri.[9]
Seven years later in Asaro, the Court addressed the issue left open in Bass, whether a third party could recover for emotional harm caused by the observation of a negligent defendant injuring another. The Court adopted the majority rule known as the “zone of danger” test.[10] It allows recovery for a plaintiff who proves that he “is threatened with bodily harm by defendant's negligence and emotional distress results from reasonable fear of [that threat of] personal, physical injury.”[11]
Recovery for negligent infliction of emotional distress is contingent on the plaintiff’s involvement in the accident negligently caused by the defendant. This results in two separate tests, one applicable to direct victims and one applicable to bystanders.
III. Commentary
According to the majority in Jarrett, neither Bass (involving a direct victim), nor Asaro (involving a bystander), directly addressed the issue of “a direct participant's claim for emotional distress upon observing a third party's injury.”[12] By finding that Mr. Jarrett qualified as a direct victim, his recovery was not precluded by the fact that he did not fear for his own safety, as in the case of a bystander. Rather, his emotional distress must only be foreseeable. The majority stressed the belief that a plaintiff’s participation in an accident and any emotional distress resulting from a later observation of physical injury to another caused by the accident are inseparable.
Based on the majority’s reasoning, the less stringent direct victim standard of recovery applies when a plaintiff’s participation and observation are inseparable, expanding the cause of action for negligent infliction of emotional distress. As a result, a direct victim plaintiff can increase the chance of prevailing.
However, as the dissenting opinion expresses, this reasoning is not without criticism. Participation in an accident and viewing an injured person can occur at distinctly separate times. The zone of danger test could be applied in limitation to the subsequent observation, rather than both the participation and viewing. Judge Limbaugh’s dissent agreed, contending that this new development in negligent infliction of emotional distress “will cause wildly incongruous, if not absurd results.”[13]
- Meghan E. Lewis
[1] 258 S.W.3d 442, 442-50 (Mo. 2008) (en banc).
[2] Id. at 442-50.
[3] Id. at 450-52 (J. Limbaugh, dissenting).
[4] Id. at 445; see also Pretsky v. Southwestern Bell Telephone Co., 396 S.W. 2d 566 (Mo. 1965), Gambill v. White, 303 S.W.2d 41 (Mo. 1957), Trigg v. St. Louis, Kansas City & Northern Ry. Co., 74 Mo. 147 (1881).
[5] 646 S.W.2d 765 (Mo. 1983) (en banc).
[6] 799 S.W.2d 595 (Mo. 1990) (en banc).
[7] Bass, 646 S.W.2d at 772-73.
[8] Id. at 773.
[9] Id. at 770, n. 3.
[10] See e.g., K.A.C. v. Benson, 527 N.W. 2d 553 (Minn. 1995) (denying recovery for hospital patient outside the zone of danger); Hunger v. Grand Cent. Sanitation, 670 A.2d 173 (Pa. Super. 1996) (adopting the impact rule, and denying recovery to plaintiff); Ex Parte Grand Manor, Inc., 778 So.2d 173 (Ala. 2000) (denying recovery for plaintiff who experienced no mental anguish and was not in the zone of danger of a shower that scalded plaintiff’s son); Tobin v. Grossman, 249 N.E.2d 419 (N.Y. Court of Appeals 1969) (denying recovery for plaintiff mother whose child was hit by defendants car, plaintiff mother was outside the zone of danger).
[11] Asaro, 799 S.W.2d at 599.
[12] Jarrett, 258 S.W.3d at 445-46.
[13] Id. at 447 (J. Limbaugh, dissenting).
