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Keywords

plaintiffdefendantdamagesnegligenceliabilityappealmotion
tortplaintiffdefendantdamagesliabilityappealtrialmotion

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Philibert v. Kluser, 360 Or. 698, 385 P.3d 1038

Facts

Two brothers, aged eight and twelve, witnessed their younger brother being run over by a pickup truck while crossing a street in a crosswalk. The driver of the truck was negligent, and the youngest brother died at the scene. The two surviving brothers experienced severe emotional distress as a result of witnessing their brother's death. They filed a negligence action against the driver, seeking compensation for their emotional injuries, which included severe emotional distress, depression, post-traumatic stress disorder, aggression, and severe anxiety.

Plaintiffs are two brothers, aged eight and twelve, who were crossing a street in a crosswalk with the walk signal with their seven-year-old younger brother. Defendant negligently drove his pickup truck through the crosswalk, running over the youngest boy and narrowly missing the other two.

Issue

Whether bystanders who witness the negligent injury or death of a close family member can recover for emotional distress without having suffered physical injury themselves.

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, thus precluding the claims brought by plaintiffs in this case.

Rule

A defendant 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 perceives the event contemporaneously and is a close family member of the person suffering the bodily injury.

A defendant 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 perceives the event contemporaneously, and is a close family member of the person suffering the bodily injury, adopting Restatement (Third) of Torts § 48.

Analysis

The court analyzed the application of the new rule by considering the facts of the case, where the plaintiffs witnessed the traumatic death of their brother due to the defendant's negligence. The court found that the emotional distress experienced by the plaintiffs was a direct result of witnessing the event, which aligned with the newly adopted standard for bystander recovery. The court emphasized that the emotional harm suffered by the plaintiffs was significant and warranted legal recognition.

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.

Conclusion

The Supreme Court reversed the decision of the Court of Appeals and the judgment of the circuit court, allowing the plaintiffs to pursue their claims for emotional distress damages.

We therefore reverse the decision of the Court of Appeals and the judgment of the circuit court, and remand the case to the trial court.

Who won?

The plaintiffs prevailed in the case because the court recognized their right to recover for emotional distress despite not having suffered physical injury, thereby allowing them to pursue their claims.

The Supreme Court, Balmer, C.J. held that: 1 the Supreme Court would reject 'impact rule' under which bystander could not recover for emotional distress unless there is direct accompanying physical injury to the person who suffers the emotional distress.

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