Fender bender lottery: direct victims and bystanders in recovery for the negligent infliction of emotional distress.

• Author: Hill, Josh
• Position: Missouri

Jarrett v. Jones (1)

1. INTRODUCTION

   Recovery for the negligent infliction of emotional distress has always been a hazy and constantly changing area of the law. (2) Recovery for this tort has generally been premised upon shifting policy concerns. Historically, courts agreed with public policy declaring emotional distress too difficult to prove and too easy to fake and only allowed emotional distress that occurred in connection with a physical injury. (3) This rule flourished and grew into acceptance across America. (4) As the tort developed and scientific advances in authenticating the symptoms of emotional distress became more mainstream, the policy consideration shifted towards allowing recovery for emotional distress based on the idea that, when the negligence of another causes injuries, physical or otherwise, no one should be prevented from recovering damages. (5)

   Over the years, courts have developed multiple tests to determine when recovery should be allowed for plaintiffs suffering from emotional distress. (6) Mainly, recovery has been categorized into two distinct classifications: direct-victim recovery and bystander recovery. (7) While the law regarding the standard of recovery for direct victims and bystanders has been settled in Missouri for some time, (8) Jarrett v. Jones provides some guidance on how the Supreme court of Missouri discerns the practical differences between a direct victim and a bystander. (9) While the practical differences are meant to allow Missouri courts to apply the proper standard and, ultimately, determine recovery, it is not entirely clear that the distinctions will matter.

2. FACTS AND HOLDING

   The case of Jarrett v. Jones stems from a June 8, 2004, car accident which occurred on Interstate 44 in Laclede County, Missouri. (10) On a rainy night in June 2008, Tommy Jarrett (Mr. Jarrett) (11) was driving his tractor-trailer alone in the eastbound lane of Interstate 44. (12) on the opposite side of Interstate 44, Michael Jones (Mr. Jones) was driving westbound with his wife and two daughters. (13) As a result of Mr. Jones' negligence, most important of which was driving too fast for the weather conditions, (14) his car crossed the grassy median and hit Mr. Jarrett's tractor-trailer head on. (15) The collision caused Mr. Jarrett's knees to hit the steering wheel and dashboard, which twisted his ankles and his knees. (16) Aside from that contact, Mr. Jarrett admitted that "there was no physical injury of any kind as a result of impact injury...." (17) After the collision, Mr. Jarrett left his vehicle and went to Mr. Jones' vehicle to make sure that no one was hurt. (18) When he reached the vehicle, he saw that Mr. Jones and his wife were badly injured and that the Jones' two-year-old daughter had been killed in the accident. (19)

   As a result of the accident, Mr. Jarrett suffered "mental and emotional injuries, including post-traumatic stress disorder and feelings of anxiety, trauma, anguish and stress." (20) However, Mr. Jarrett admitted that his "emotional struggles, grief and feelings of guilt after the collision stemmed from his viewing of [the Jones'] daughter, not from the collision itself." (21)

   Mr. Jarrett brought suit in the Circuit Court of Laclede County, Missouri against Mr. Jones for negligently operating his vehicle, claiming the accident had caused him extreme emotional distress. (22) He specifically alleged that Mr. Jones "was driving too fast for the wet road conditions and, therefore, was negligent in failing to operate his vehicle with the required [degree] of care." (23)

   In granting Mr. Jones' motion for summary judgment, the trial court found that, since Mr. Jarrett admitted the sole cause of his emotional distress was seeing the body of the Jones' daughter and not the collision itself, Mr. Jarrett was not in the "zone of danger" (24) because he did not fear personal injury to himself when he viewed her body. (25) Because he was not in the "zone of danger," and the practical differences between direct-victim recovery and bystander recovery were unclear in Missouri, the trial court looked to other states and determined that Mr. Jarrett was seeking bystander recovery. (26) Because he was seeking recovery as a bystander, the trial court found that Mr. Jarrett "failed to present facts that would entitle [him] to recover damages for ... emotional distress...." (27)

   On appeal, the Missouri Court of Appeals for the Southern District found that the trial court did not err in applying the requirements for bystander recovery to Mr. Jarrett's case and affirmed the decision of the trial court. (28) The appellate court found that, because the trial court reasoned that bystander recovery should be applied and Missouri "thus far, ha[d] not permitted bystander recovery," the grant of summary judgment for Mr. Jones was permissible. (29)

   The Supreme Court of Missouri answered two primary questions on appeal. (30) First, did the trial court err in applying the standard of recovery for bystanders in negligent infliction of emotional distress cases instead of applying the standard of recovery for direct victims? (31) Second, under the theory of bystander recovery, was it error for the trial court to refuse to consider facts showing that Mr. Jarrett's emotional distress stemmed from seeing the deceased daughter of Mr. Jones? (32) In answering the first question, the Supreme Court of Missouri held that the trial court erred in applying the standard for bystander recovery, because Mr. Jarrett's feelings of grief and emotional distress were a result of the "whole traumatic event" and the concept of a direct victim encompasses the plaintiffs viewing of third parties as long as there is direct involvement in the accident. (33) The supreme court then noted that Mr. Jarrett was in fact a direct victim. (34) In answering the second question, as to whether it was error for the trial court to refuse consideration of certain facts surrounding Mr. Jarrett's emotional distress, the supreme court held, using direct-victim recovery, that Mr. Jarrett presented facts that, if true, would prove each element of his claim and, thus, summary judgment was granted in error. (35)

3. LEGAL BACKGROUND

   The critical legal question in the cases leading up to the decision in Jarrett v. Jones was what standard must be met to recover for the negligent infliction of emotional distress in Missouri. (36) The answer to this question had, at one point, been firmly entrenched in Missouri law since the 1881 decision in Trigg v. The St. Louis, Kansas City & Northern Railway Company? (37)

   Trigg was the seminal Missouri case that made it clear that a defendant is not liable for negligence resulting in emotional distress unless the plaintiff suffered a contemporaneous traumatic physical injury. (38) The Supreme Court of Missouri announced the impact rule, requiring physical injury, as one that "is well established." (39) When there is a lack of "malice, willfulness, wantonness, or inhumanity," a showing of some physical injury tied to the emotional distress is required before one can recover for the emotional distress. (40) Thus, courts would not allow recovery for negligently inflicted emotional distress without proving some physical injury had occurred during the same incident that had caused the emotional distress. (41) The policy underlying this rule was the main reason for its adoption. (42)

   For one, the impact rule was premised on the idea that proving mental distress is extremely difficult and, at the least, a physical injury can provide some causal connection to show that harm caused by a defendant's negligence did cause at least enough harm to trace. (43) Another rationale was that if recovery for the negligent infliction of emotional distress were allowed in the absence of cognizable physical injury, it would create a flood of litigation, especially lawsuits involving fraudulent claims from people who invented injuries. (44) However, as the impact rule developed, it was interpreted very broadly, so that even the most minimal contact would open the door to recovery. (45) The impact rule remained a staple of Missouri law for more than 100 years, until new policy concerns mandated that it be overruled. (46)

   In 1983, Bass v. Nooney was the first Missouri case to challenge the impact rule and present new policy concerns, which called for the rule to be changed. (47) In Bass, a secretary who frequently made trips between floors of a high-rise office building suffered severe emotional distress after being trapped in one of the building's elevators for more than thirty minutes. (48) After the incident, her doctor made a medical diagnosis of "severe anxiety reaction," which was "precipitated by being stuck in the elevator." (49) The trial court faithfully applied the available case law and denied the recovery, because she suffered no physical injury during her traumatic ride on the elevator. (50)

   Upon accepting the case, the Supreme Court of Missouri noted that the impact rule was based upon the policy considerations outlined above (51) and that the rule had always been fraught with scholarly criticism. (52) over time, courts across the country that applied the impact rule began to apply an "increasing[ly] liber[al]" interpretation of physical impact, to the point where almost no physical injury was required. (53) While the past policy considerations were taken into consideration, the court's survey of other jurisdictions found that by 1959 "a clear majority of the jurisdictions had rejected any requirement of a contemporaneous physical trauma." (54) The court determined that, although the "impact rule" was based on valid policy considerations, it was also important policy that "difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim." (55)

   The court found that the fields of medicine and psychology had reached a point where...