The Status of Bystander Damage Claims in Louisiana: A Less-Than-Perfect Fit in the Tort Puzzle

• Author: Jessica Coco
• Pages: 261-288

Page 261

The author would like to thank Professor Frank L. Maraist, Nolan J. Edwards Professor and Holt B. Harrison Professor, Professor at the Paul M. Hebert Law Center, for his guidance in developing this topic.

I Introduction

While playing outside in the front yard of her house, a little girl, Suzie, is seriously injured when a man riding a bicycle negligently runs over her. The mother of the young girl, Rose, witnesses the entire accident from the front porch and suffers severe emotional distress and mental anguish from the experience.

This hypothetical is the precise situation the legislature was seeking to redress in enacting Louisiana Civil Code article 2315.6, approving the recovery of bystander damages. By allowing certain classes of bystanders to recover for mental anguish and emotional distress suffered after witnessing injury to another person or coming upon the scene soon thereafter,¹ the legislature is promoting the tort goals of compensating true injury and deterring undesirable conduct.² Unfortunately, in doing this, the legislature failed to address many issues, which resulted in numerous unanswered questions. Specifically, what is the nature of the Page 262 bystander claim, i.e., is the claim derivative³ of the primary victim's injury? Also, in the context of automobile liability insurance policies and the Medical Malpractice Act (MMA), is the claim subject to a separate ceiling of applicable liability limits or is the bystander required to share the same cap as that of the primary tort victim? Lastly, what is the bystander's role in the Workers' Compensation Act (WCA)? These are the questions which this comment addresses.

When the lack of legislative guidance is combined with the inconsistent statements of the lower courts⁴ and the dodging of the issue by the Louisiana Supreme Court,⁵ the nature of the bystander claim is far from clear. In addition to the need to reconcile the conflicting court opinions, the nature of the bystander claim is a serious concern in the context of automobile insurance coverage, medical malpractice liability and workers' compensation. Although the extent of coverage in the various contexts largely turns on the particular language of the policies and statutory provisions, the extent of the policy limits available is oftentimes dependent on whether or not the asserted claim is derivative of the injured victim's claim.⁶ Page 263

An independent duty exists to protect a plaintiff from mental anguish damages occasioned by the injury to a third person.⁷ This is largely the reason why a bystander claim is not a derivative claim. Consequently, in addition to other reasons, a bystander should not be constrained to the single person limits of automobile liability insurance policies, medical malpractice liability caps, or workers' compensation exclusivity provisions, especially when those constraints are based on the derivative nature of the claim.

Since many answers are reached based on the derivative nature of a claim, the initial purpose of this paper is to resolve the conflict regarding the nature of the bystander claim. The non-derivative nature of the bystander claim is evidenced through the comparison of the claim with established derivative claims of loss of consortium, wrongful death, and survival actions and by emphasizing the independent duty owed to the bystander. The establishment of the bystander claim as non-derivative aids in the explanation of why a bystander claimant should be allotted the aggregate limits of liability under automobile insurance policies, separate caps under the MMA, and excluded altogether from the provisions of workers' compensation exclusivity.

Part II provides a brief background surrounding the enactment of Louisiana Civil Code article 2315.6. Part III analyzes the nature of the bystander claim, resolving the contested issue concerning the claim's derivative status in favor of the non-derivative nature of the claim. Part IV addresses the treatment of bystander damages within the framework of automobile liability insurance policies and the MMA, stressing the need to allow the bystander access to increased limits of coverage, and the exclusion of the claim from the workers' compensation exclusivity provision. Finally, Part V concludes with a reiteration that the bystander claim is not derivative of the trauma victim's injury, the bystander's entitlement to separate limits of liability, and the non-applicability of workers' compensation exclusivity. By eliminating any temptation to treat bystander claims as derivative actions, this paper calls for Louisiana courts to recognize the independent nature of the bystander claim, necessitating the individual treatment of the claim in automobile liability insurance policies and the MMA and excluding the claim altogether from the WCA. Page 264

II Bystander Damage Claims: 135 Years in Waiting

"We cannot let the difficulties of adjudication frustrate the principle that there be a remedy for every substantial wrong."

-Justice Tobriner⁸

The Louisiana Supreme Court decision of Black v. The Carrollton Railroad Company⁹ in 1855 set the stage for 135 years of jurisprudence denying recovery for mental anguish based on injury to another. Black involved a train wreck caused by the Carrollton Railroad Company's negligence.¹⁰ A fourteen-year-old boy who was a passenger on the train suffered two broken legs.¹¹

The boy's father, who was not a passenger, attempted to recover for the shock to his parental feelings and the anxiety stemming from his son's injuries.¹²

Several reasons were advanced in support of the rule announced by the supreme court in Black. First, there was the concern that defendants and the courts would be subject to "spurious and fraudulent claims."¹³ Second, allowing bystander recovery may subject the defendant to a "myriad of claims."¹⁴

Third, allowing bystander recovery may open the floodgates of Page 265 litigation.¹⁵ Lastly, moral factors influenced the court in Black:¹⁶

An important reason for denying recovery in the case was the Court's perception that mental anguish damages were punitive in nature, implying moral culpability on the part of the defendant when that culpability may be lacking.¹⁷

While other jurisdictions in this country were adopting exceptions for allowing recovery,¹⁸ Louisiana adhered to the Black decision until 1990.¹⁹ In fact, it took Louisiana twenty-two years²⁰ to recognize and approve what the California Supreme Court accepted in its 1968 decision of Dillon v. Legg.²¹

In the 1990 case of Lejeune v. Rayne Branch Hospital,²² the Louisiana Supreme Court overruled its decision in Black, reversing 135 years of jurisprudence. Lejeune involved a widow who brought an action against the defendant hospital to recover for the mental anguish she suffered upon discovering that her hospitalized, Page 266 comatose husband had been bitten by rats.²³ Rewarding damages to the widow, the court clearly upheld recovery for the mental pain and anguish sustained by a person due to the negligent infliction of injury on a third person.²⁴ However, this endorsement of bystander damages was not limitless. The court imposed restrictions on this bystander recovery: (1) the claimant must view the accident or injury-causing event or come upon the accident scene soon thereafter; (2) the mental pain and anguish must be reasonable; (3) the mental pain and anguish must be serious and foreseeable; and (4) the claimant must have a close relationship with the person injured.²⁵

The supreme court did not provide an answer to all bystander recovery questions, "leav[ing] for another day a decision whether recovery should be allowed only for close relatives (and if so, which ones), or rather, for those with simply a close relationship to the victim."²⁶ However, the legislature stepped in and provided an answer to this question by adopting Louisiana Civil Code article 2315.6 on July 19, 1991, codifying the supreme court's holding in Lejeune.²⁷ Article 2315.6 is nearly identical to the restrictions listed in Lejeune, the sole exception being the legislature's clarification of the close relationships necessary to recover-the spouse, children, grandchildren, parents, siblings, and grandparents of the trauma victim.²⁸

After the supreme court decision in Lejeune and the legislature's adoption of Civil Code article 2315.6, the policy reasons underlying the Black ruling are highly questionable. First, the worry of spurious and fraudulent claims is unwarranted Page 267 because it is dealt with by "careful scrutiny of the evidence supporting the claim,"²⁹ as is done in any other case. As stated by one legal writer Cullen Dupuy, "The elimination of trivialities calls for nothing more than the same common sense which has distinguished serious from trifling injuries in other fields of the law."³⁰ In addition, the legislature helped to forestall this concern by requiring that the mental anguish be reasonable, serious, and foreseeable, and that the direct victim suffer such harm as to make it reasonable for the claimant to suffer such serious emotional distress.³¹ Second, the bystander recovery rule in 2315.6 takes care of the "myriad of claims" problem by limiting the bystanders who may recover to close family members who view the accident or come upon the scene soon thereafter.³² Third, the possibility of opening the...