Archive for February, 2013

Is a Physical Impact or Touching Required to Recover for Claims of Emotional Distress? – Nick Nighswander answers.

Friday, February 1st, 2013

Is a Physical Impact or Touching Required to Recover for Claims of Emotional Distress?

Just before Christmas last month, the Kentucky Supreme Court in the case of Osborne vs. Keeney rendered a decision addressing this very issue. Kentucky law has always required some kind of physical contact to the Plaintiff to allow recovery for a claim that included damages for emotional distress. This article does not address the other issues in the case decided by the Kentucky Supreme Court.

Post traumatic stress disorder (PTSD) damages are now recognized and occur to persons who witness or are involved with horrific events. The result of which can cause serious and lifelong emotional problems. Such persons may now have a legal action for damages against a tortfeasor who causes the terrible event if this case becomes final.

Kentucky has been in the minority of other jurisdictions in still requiring an impact or touching to be able to bring a claim for emotional distress. Sufficient touching in the past to satisfy such a claim in Kentucky has been with the use of X-rays on the plaintiff. On the other hand in another case, sunlight rays have not satisfied the touching requirement in Kentucky.

The Kentucky Supreme Court in this case decided to have Kentucky join the majority of states that recognize claims for emotional distress suffered from traumatic events without the need of a physical impact or touching to support the claim. The Kentucky Supreme Court’s analysis of the law and the reasoning for the change starts on page 18 of the opinion. A major factor for the change is that medical science and treatment for such injuries have come along way in addressing such claims.

In Osborne vs. Keeney, the Court ruled that emotional distress plaintiffs must first satisfy the proof elements of a general negligence claim: 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached that duty of care to the plaintiff; 3) there was an injury to the plaintiff; and 4) legal causation between the defendant’s breach and the plaintiff’s injury. However, the emotional distress injury to the plaintiff is required to be severe or serious.

What are the facts in this case? In 2002, the Plaintiff Mrs. Osborne was sitting in her home watching television when an airplane took off from a nearby airport. After take off, the airplane lost engine power and crashed through the roof of her home destroying the home and its contents from the crash and subsequent fire. Mrs. Osborne ran out of her home at the time of the crash and did not suffer any physical injury. However, she saw the destruction to her home from the crash of the airplane and fire. Mrs. Osborne had suffered for some time prior to the crash from anxiety, insomnia and depression among other ailments. She was transported to the local hospital from the scene and was treated for shock. The treating doctor testified that the crash and destruction of her home exacerbated her conditions. For which, Mrs. Osborne was treated for an extended time after the crash.

Witnesses to horrific events or who are involved in the events but escape without any physical injuries but continue to suffer emotionally after the event, will now have a recourse for their injuries in a court of law in Kentucky if this case becomes final. This letter will keep you informed as to the finality of this case in future issues as it is an important legal development for persons who are victims of severe emotional distress.

This case is not yet final and should not be cited as a authority. A link to this recent Court Opinion follows:

http://opinions.kycourts.net/sc/2010-SC-000397-DG.pdf

Know your rights and stay within the law.

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Nicholas M Nighswander PLLC Attorney at Law
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