The Supreme Court recently published Steel Technologies, Inc., v. Congleton, et. al, which dealt with the award of damages for pre-impact fear. The case arose from a tractor-trailer accident, that resulted in the death of Melissa Congleton. Steel Technologies employed the driver to haul large steel coils. He used three chains, instead of at least five as required. One of these coils fell from the truck striking Congleton. She died at the scene.
At the close of of defendant's case, the court determined that instructions on pain and suffering after the impact would be improper. However, it decided that the evidence supported giving an instruction on the emotional distress caused by Congleton's perception of the impending impact. The jury returned an award of $100,000.00 for pre-impact fear.
Steel Technologies argued that the award for pre-impact fear conflicted with longstanding Kentucky law. Specifically, it argued that the jury instructions and the award violated the impact rule for negligently inflicted mental damages. The evidence supporting the verdict included skid marks, showing Congleton anticipated the collision, and testimony that even after death, her face was fixed in the expression of a scream.
The Supreme Court noted that touching has traditionally been required before recovery may be had for negligently inflicted emotional distress, citing to Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). In fact, Deutsch does note that "[c]ontact, however, slight, trifling, or trivial, will support a cause of action." Cases like Deutsch followed the spirit and essence of the Restatement (Second) of Torts 456, which comments on recovery in just such an instance.
However, the reading of Deutsch is incomplete. "It is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of, the physical contact or injury sustained." The cause of action does not even accrue until physical injury manifests itself. The rule is clear: It is not enough that emotional distress be accompanied by contact--it must be caused by the contact. This also means any contact must precede the emotional distress before recovery is permissible.
The Court specifically rejected Congleton's and Amicus' attempts to do away with the impact rule. It even noted this case was not a particularly good one to alter Kentucky law given the speculative nature of the evidence supporting the claim, which consisted primarily of the opinion of an emergency services worker about what the grimace on the victim's face meant. However, the Court left open the possibility of revisiting the rule, should the correct case have a first hand account or reliable eye-witness testimony available, and there is demonstrable evidence of mental distress manifesting in a medical injury proven through expert testimony.
Can't wait to see these cases start lining up.