The United States Supreme Court denied cert in Flax v. DaimlerChrysler Corporation, the products liability, punitive damages, and negligent infliction of the emotional distress case decided by the Tennessee Supreme Court last year. Here is my post from last July on the decision by the Tennessee court.
CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend, who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS. She has tested negative for the disease. Here is a copy of the complaint.
Alomar’s attorney says the lawsuit is frivolous (surprise) and says his client is healthy and wants to keep his health status private. Hmmm.
Would the ex-girlfriend have a claim in Tennessee? Perhaps. Tennessee does recognize a claim for negligent transmission of a sexual disease, but recall she did not get a sexual disease. Her claim is for emotional distress arising from fear of contracting a disease that she did not get.
The January 2009 edition of the Tennessee Bar Journal includes my quarterly column on tort law. This column is titled "NIED Claims after Flax and Eskin."
For some reason, the online version of the article has some missing words and other problems, but it includes the important stuff.
The Tennessee Supreme Court has released the opinion in Eskin v. Bartee and expanded the scope of recovery for negligent infliction of emotional distress.
The bottom line: "we have determined that it is appropriate and fair to permit recovery of damages for the negligent infliction of emotional distress by plaintiffs who have a close personal relationship with an injured party and who arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident."
The key change is found in the words "arrive at the scene of the accident." Before this decision, the plaintiff was required to have seen or heard the injury causing event.
Sylvius von Saucken, a partner in the Garretson firm, has written this analysis of the opinion in Murphy v. United States, released by D.C. Court of Appeals on July 3, 2007. The case addresses the taxability of damage awards in cases alleging emotional distress.
Here, in bold, is his analysis of the decision:
On July 3, 2007 the highly anticipated Murphy decision was handed down following its rehearing on April 23, 2007. The original three judge panel (for the D.C. Court of Appeals) reheard the case following the Government’s Petition for a Rehearing En Banc. This case has a rather unusual procedural history because it is atypical for a court to vacate its own opinion, which in turn renders an existing Petition for a Rehearing en banc moot, and then rehear the case. The court’s impetus for doing so remained a mystery up until Tuesday. In the recent decision the court explained its actions. In its Petition for a rehearing the Government raised a new constitutional issue, as the Government argued “even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly.” This issue apparently triggered the court to vacate its earlier opinion and effectively gave the Government another try.
The D.C. Circuit Court of Appeals has released an en banc opinion in Murphy v. Internal Revenue Service, No. 05-5139 (July 3, 2007).
The summary of the opinion as prepared by the Court: "Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation she was awarded inan administrative action she brought against her former employer. Murphy contends that under § 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. § 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” She also maintains that, in any event, her award is not part of her gross income as defined by § 61 of the IRC, 26 U.S.C. § 61. Finally, she argues that taxing her award subjects her to an unapportioned direct tax in violation of Article I, Section 9 of the Constitution of the United States.
We reject Murphy’s argument in all aspects. We hold, first, that Murphy’s compensation was not “received … on account of personal physical injuries” excludable from gross income under §104(a)(2). Second, we conclude gross income as defined by § 61 includes compensatory damages for non-physical injuries. Third, we hold that a tax upon such damages is within the
Congress’s power to tax."
The Kentucky Supreme Court has ruled that damages for pre-impact fear cannot be recovered in a wrongful death case.
The Court said that "The proof of the fear in this case the testimony of a person at the scene of the accident that the decedent’s facial expression showed she saw the accident coming and was terrified-simply underscores the speculative nature of such harm. Mrs. Congleton’s mental distress, if any, simply was caused not by the impact she suffered, but by fear of the impact. Under the impact rule as currently applied in Kentucky, her pre-impact fear and shock cannot serve as the basis of a claim, and any damages for such a claim are not recoverable."
The case is noteworthy because it will eliminate one potential element of damages in the Comair litigation underway in Lexington. It has little relevance for Tennessee lawyers in Tennessee cases because I think our Court would reach a different result on the law. (The subject case was a little short on a factual basis for the damages.)
The Indiana Supreme Court has ruled that the fiancee of a man who came upon a crash site involving a collision between her fiancee and defendant could not sue for emotional distress.
Indiana law says that "[w]hen . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, . . . such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff."
It also provides that "a bystander may . . . establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or other-wise tortuous [sic] conduct.."
The New Hampshire Supreme Court has held that a boyfriend riding a motorcycle could not bring an emotional distress claim against another driver for injuries caused as a result witnessing the death of his passenger (who was also his girlfriend).
The issue was "did the trial court err in determining that the plaintiff and MacDonald were not “closely related” so as to satisfy the requirements of Graves v. Estabrook, 149 N.H. 202 (2003), for bystander recovery in a negligent infliction of emotional distress claim?"
The Supreme Court affirmed dismissal of the case, holding that the plaintiff and his late girlfriend were not "closely related." They explained their decision as follows:
The Tennessee Supreme Court has ruled that the three-year statute of limitation applies for emotional distess claims arising out of injury to property "inspired by fraud, malice or like motives."
The Trial Court and Court of Appeals affirmed dismissal of the claim for emotional injuries because the lawsuit was not filed within one year. The TSC reversed on this issue, holding that "[t]he gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim for damages for the injury to their property and not a stand-alone cause of action. Consequently, the three-year property tort statute of limitations applies, and the intermediate court erred in holding that the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for emotional distress."
Turning to another issue, the Court also held that "the Defendants’ violation of the Shelby County subdivision regulation does not warrant the application of the doctrine of negligence per se." The Court agreed with the Court of Appeals on this issue, and adopted this language from the opinion of the lower appellate court: "these subdivision regulations were enacted largely for reasons related to quality of life, among them, assuring adequate public facilities for residents, minimizing pollution, providing for orderly layout and use of land, protecting the value of land, preventing overcrowding, and assuring effective traffic circulation. The harm alleged by the Whaleys is not a harm the regulations were designed to prevent, but rather, it is an accidental consequence of a [regulation] enacted to prevent other harms to the community and its residents that could be caused by the unregulated subdivision of land."
Day on Torts