Imagine this happened to you, as it did to one of our clients. Your husband left for work before you did. There is unusual traffic on your way to work. You see why, as you come up to the intersection. A car that looks like your husband's is smashed in the middle of the street. When you draw closer, you actually realize that the person being attended to is wearing the same suit as your husband when he left this morning. Suddenly it dawns on you. That is your husband so you stop the car and run to his side. When you come up to him, he is unable to move. He is being attended to and recognizes you, but is paralyzed. His legs are oddly turned and he cannot speak when you ask him if he is okay. The driver that hit him is on the curb, and obviously drunk or drugged out, and should not be driving a car. You are unsure your husband will walk again. You are worried about the children, the family income, your ability to care for a paraplegic and his family is constantly calling. You can't sleep for weeks while your husband is in the hospital, but he does slowly start to recover. Do you think you deserve emotional distress damages for your pain and suffering because of the driver that caused all this? You might be surprised at the answer. One of the most difficult claims is one for emotional distress, and it has proved troubling in Courts throughout the US. Should someone that was not directly injured be entitled to recover emotional distress damages caused by another's negligence? In California you would be denied emotional distress damages. The Supreme Court ruled in the 1990's that damages in such a scenario would not be payable. See if you agree with their logic. First the Court recognized that to recover damages for emotional distress, the person must be related to the injured victim by blood or marriage. We fit into that category. But the Supreme Court was worried about excessive lawsuits. There would be no way to control the number of damages claims that would roar forward after an accident, limited only by the number of relatives that were related to the accident victim. Therefore after much deliberation the Court created an arbitrary rule. The rule was called contemporaneous observation. Not wanting to deny a claim for someone obviously emotionally devastated, but wanting to control the number and quality of claims, the Court ruled that if a spouse or parent or child is related to the person injured, AND saw the injury occur contemporaneously with the event, they would be allowed to make a claim. If the observation of injury was not contemporaneous, then no claim for emotional distress would be allowed. As our example points out, you did not see the injury occur but the aftermath. Do you really think your emotional distress damages would be any different if you actually saw the collision and then ran to his side? I doubt it. Both cases reasonably warrant an emotional distress claim. However, the Court had to draw a line, and this was the best they could come up with. I am not sure the Court did anything more than reduce the rights of those injured, and create an arbitrary and unnecessary rule. A claim should be a matter of proof, not a matter of policy. Yes, you can be emotionally traumatized by seeing your child or spouse injured in some instances, but not all. The same is true for those that come upon an accident. The claimant should be allowed to prove that the facts of their injury warrant their claim. Let the jury decide if they deserve a recovery or not. In this way, all people that suffer greatly are entitled to justice, especially if they also suffered the fear and grave physical injury associated with such a terrible event that leaves them scarred for life. Let me know what you think.
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