Preimpact Terror Awards - A Lottery.

SINCE the early 1980's, in about a dozen jurisdictions in the United States courts and juries have been permitted to award a decedent's estate tort damages for preimpact terror (or fright) as a separate subcategory of damages awarded for conscious pain and suffering. The intent of such awards is to compensate the estate for the emotional harm and fright thought to have been endured by the decedent during the brief interval between first becoming aware of a dangerous situation that is likely to lead to his or her impending death and sustaining the fatal physical injuries resulting from the perceived danger. Such awards do not serve as compensation for the survivors' pecuniary loss, or for their own emotional distress at the loss of a loved one, or for loss of parental care and guidance, or any other type of damages resulting from the death that may be recoverable in the particular jurisdiction whose law applies. While the preimpact terror cases frequently involve airplane crashes, automobile accidents, or drownings, recovery is not limited to those fact patterns.

Preimpact terror, as a form of "emotional harm," has been recognized as a category of compensable tort damages by the American Law Institute in Section 47 of its Restatement of the Law, Torts: Liability for Physical and Emotional Harm. 1 The "black letter" of Restatement [section] 47 provides, in relevant part, "An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct: (a) places the other in danger of immediate bodily harm and the emotional harm results from the danger;..."

Under the Restatements formulation, physical injury is no longer necessary; emotional harm is enough. That is the law in those jurisdictions, such as New York, that allow preimpact terror damages. Plaintiffs need only produce "some evidence that the decedent perceived the likelihood of grave injury or death before the impact, and suffered emotional distress as a result." 2 Where plaintiffs cannot provide proof cognitive awareness for at least some period of time following an accident, summary judgment will be granted, dismissing the claim for preimpact terror. 5

In some states, no damages are available for conscious preimpact fright unless there is proof that the decedent also suffered physical harm prior to the impact as a result of the fear of impending death. 5

Except in rare situations, like hijacked United Flight No. 93 on September 11, 2001, when some passengers on the doomed plane were describing their feelings to loved ones via cell phones, or where a witness to the accident saw and heard the decedent in the interval before death, or where a survivor describes her feeling in the moments before the crash, no can or will ever "know" what the decedent was thinking.

In her Note: "'Why Aren't The Pilots Doing Something?' A Look At The Approaches Courts Use To Handle Claims For Pre-Impact Terror In Airplane Disasters," 5 Christine Nierenz included portions of the word-for-word transcript taken from the dialogue of the show "Survival in the Sky: A Wing and a Prayer" (The Learning Channel broadcast, Dec. 8, 1996). They show that not all passengers on doomed airplanes panic or experience terror; some, quite the opposite, enjoy feelings of total peace and serenity. And, it is impossible to say into which group a decedent falls, although it is reasonable to suppose, and experts have so testified, that the more likely response is fear and panic.

The Learning Channel interviewed the flight crew of United Air Lines Flight 232, which took off from Denver, Colorado bound for Chicago, Illinois, but instead attempted an emergency landing in Sioux City, Iowa after suffering catastrophic failure of its tail-mounted engine, which led to the loss of all flight controls. Of the 296 passengers and crew on board, 111 died. 6 Ms. Nierenz writes that "Jan Brown-Lohr, a senior flight attendant on the plane, recalls, Well, we started to go over, uh, I was like, I don't want to do this, [laughs], I know this airplane is starting to roll.' In the moments after the crash, Brown-Lohr remembers, 'I couldn't hear anything, I couldn't feel anything, I couldn't smell anything, nothing was working except my mind; uh, it was like total body detachment, or, being in a protective cocoon; um, I then realized that two-thirds of me was suspended in fire and I felt, this is, this is it, this is how I'm going to go, this is how I'm going to die, and it was, uh, the most incredibly peaceful moment I've ever known, that, uh, I was in no pain. I had no fear anymore, it was total peace. '" 7

While a damages award cannot stand when the only evidence to support it is speculative or purely conjectural, eyewitness testimony is not necessary to support an award for preimpact terror. In most cases it would be difficult, if not impossible, to obtain. Circumstantial and expert evidence will suffice. 8 But one court, ruling on defendant's motion in limine, permitted plaintiff's expert to testify as to preimpact terror generally, but excluded as speculative his testimony regarding the specific incident involved in the case. 9

1. Circumstantial evidence

   In Lang v. Bouju, 10 the court found that a "reasonable factfinder could infer, from the fact that Lang applied his [motorcycle] brakes as he did, that he had indeed seen Bouju's [stopped] truck and was aware of the likelihood-and ultimately the certainty--of a serious collision, during the approximately five seconds preceding impact.... In view of his speed and proximity to the truck when this occurred, and his inability to control the motorcycle as it proceeded toward the truck, it was not unreasonable for the jury to find that, at some point prior to impact, Lang perceived the inevitable, that he was going to endure grave injury or death, so as to justify making an award for this 'preimpact terror'." The court allowed a recovery of $100,000 as "ample compensation for Lang's brief emotional pain and suffering." 11

   In Missouri Pacific Railway Co. v. Lane, 12 decedent's truck stalled as it was going over a railroad crossing and would not restart. Decedent "was confronted with a 2,000-ton train speeding toward him at sixty miles per hour." The court held that "the terror and consequent mental anguish Lane suffered for the six to eight seconds while he faced imminent death" was sufficient to sustain a $19,500 award for preimpact terror.

   Two Second Circuit cases, arising out of the same plane crash and decided within six months of each other reached opposite results based on where the passengers were seated. In Shatkin v. McDonnell Douglas Corp., 13 the court...