Philibert v. Kluser
2016 Ore. LEXIS 793, 385 P.3d 1038, 360 Or. 698 (2016)
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Rule of Law:
A plaintiff who contemporaneously perceives the sudden, serious bodily injury of a close family member caused by a defendant's negligence may recover damages for resulting serious emotional harm, even if the plaintiff did not suffer a direct physical impact.
Facts:
- Plaintiffs, two brothers aged eight and twelve, were crossing a street in a crosswalk with their seven-year-old younger brother.
- The brothers had the 'walk' signal to cross.
- Defendant negligently drove his pickup truck through the crosswalk.
- The truck struck and killed the seven-year-old brother.
- The truck narrowly missed the two older brothers.
- The two surviving brothers witnessed their brother's death at the scene.
- As a direct result of witnessing the event, the surviving brothers suffered serious emotional injuries, including severe emotional distress, depression, and post-traumatic stress disorder.
Procedural Posture:
- The two surviving brothers (Plaintiffs) filed a negligence action against the driver (Defendant) in an Oregon circuit court (trial court).
- Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted.
- The circuit court granted the defendant's motion to dismiss, applying the 'impact rule'.
- Plaintiffs appealed the dismissal to the Oregon Court of Appeals.
- The Court of Appeals affirmed the circuit court's judgment, also relying on the 'impact rule'.
- Plaintiffs petitioned the Oregon Supreme Court for review, which was granted.
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Issue:
Can a plaintiff who suffers serious emotional distress after contemporaneously perceiving the sudden, serious bodily injury of a close family member recover damages for that distress from the negligent actor, even without suffering a physical impact?
Opinions:
Majority - Balmer, C. J.
Yes. A plaintiff who witnesses the negligently caused traumatic injury or death of a close family member can recover for serious emotional distress. The court rejects the outdated 'impact rule,' which arbitrarily required a plaintiff to suffer a physical impact to recover for emotional distress. The court also declines to adopt the 'zone of danger' test. Instead, it adopts the rule from the Restatement (Third) of Torts § 48, which recognizes that the interest in avoiding the witnessing of such a traumatic event is a legally protected one. The Restatement approach provides a more principled framework for recovery by focusing on the factors most likely to cause genuine, severe emotional harm: the closeness of the relationship, the contemporaneous perception of the event, and the seriousness of the injury and resulting distress. This approach avoids the illogical outcomes of the impact rule while still placing reasonable limits on liability.
Analysis:
This landmark decision for Oregon common law explicitly abandons the restrictive 'impact rule' for bystander recovery in negligent infliction of emotional distress cases. By adopting the Restatement (Third) of Torts § 48, the court aligns Oregon with the majority of jurisdictions and creates a new framework for a previously unrecognized claim. This change significantly expands potential liability for negligent actors, as recovery is no longer barred by the arbitrary fact of whether the bystander was physically touched. The decision establishes a clear, multi-factor test that future courts will apply, focusing on the foreseeability and genuineness of severe emotional harm in specific, traumatic circumstances.
