Fort Lauderdale Car Accident Attorney Blog
In Florida, it is possible to collect for negligent infliction of emotional distress following a car accident, but it is not as simple as suffering emotional harm. In order to collect compensation for such damages, plaintiff must suffer a discernible physical injury.
One of the exceptions noted is what other jurisdictions refer to as the “relative bystander test.” This requires the plaintiff to suffer a physical injury caused by the psychological trauma of witnessing, seeing or otherwise being involved in some way to the event causing negligent injury to another to whom plaintiff has a close personal relationship.
The case of Clifton v. McCammack recently dealt with the issue of negligent infliction of emotional distress under Indiana law. That state is one of those that refers to the exception as the “bystander rule.” There are three circumstantial factors that must be met in order for plaintiff to succeed in a claim for negligent infliction of emotional distress. One of those three factors is “direct involvement” in the incident.
According to court records, plaintiff and his son resided together and were very close. The 51-year-old son helped to care for his aging father.
One night, the son left on his moped around 11 a.m. Less than 20 minutes later, a driver negligently turned in front of him, causing him to strike her vehicle and suffer fatal injuries.
Immediately after the crash, the son was still on his moped. Witnesses to the crash lifted him off and laid him down on the pavement. He sustained severe bleeding to his head, as well as trauma to his back, neck and face. Crews arrived to try and resuscitate him, but he was pronounced dead a short time later.
His father had been at home watching television. Shortly after his son was pronounced dead, he watched a news broadcast of a fatal accident involving a moped not far away. He worried the rider could be his son. The newscast did not feature any scenes from the accident or details regarding the victim.
Plaintiff got into his own vehicle and drove to the scene. When he arrived, he saw his son’s moped near defendant’s vehicle. He saw a body under a white sheet. Although he did not see blood or physical injury, he recognized the shoes that were sticking out from the bottom of the sheet.
He spoke to an officer, who took him to a nearby restaurant and confirmed the rider was in fact his son. He was extremely distraught and a few hours later, a minister and his wife took him home. He was not present for the removal of his son’s body and the scene was completely clean when he left. He underwent counseling and required antidepressant medication.
Plaintiff filed a lawsuit against the driver who caused the traffic collision, alleging negligent infliction of emotional distress. Although defendant conceded negligent in causing the death of plaintiff’s son, she denied his claim for negligent infliction of emotional distress, arguing he failed to meet certain requirements for the claim.
Trial court appealed, appellate court reversed, but then the Indiana Supreme Court reversed again, reinstating the trial court’s initial ruling.
The court found plaintiff failed to meet the “direct involvement” aspect of the requirements. In order to meet this requirement, plaintiff would have had to be either at the scene when the incident occurred or arrive soon thereafter. Additionally, he would have needed to show the scene and the victim were in the same condition as immediately following the crash, and to not have been informed of the incident before arriving.
Although plaintiff could argue he suffered physical injury as a result of his emotional distress, the problem was he was not witness to the accident, and though he arrived soon thereafter, the scene was not the same as it had been immediately after the crash. He never witnessed any injury, blood or resuscitation efforts. He never saw his son’s body uncovered from that white sheet. He was also informed of the incident prior to arrival via the newscast (although he did not know for sure it was his son).
Thus, he was unable to collect damages for negligent infliction of emotional distress.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Clifton v. McCammack , Sept. 21, 2015, Indiana Supreme Court
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