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Father who didn't see son's accident can sue for emotional distress.



Hearing about a child's accident can be almost as upsetting as actually seeing it. Most parents would probably agree with that notion, and so does the Montana Supreme Court The Montana Supreme Court is the highest court in the U.S. state of Montana. It is established and its powers defined by Article VII of the 1972 Montana Constitution. It is primarily an appellate court which reviews civil and criminal decisions of Montana's trial courts of general , which recently ruled that a father was entitled to compensation for emotional distress emotional distress n. an increasingly popular basis for a claim of damages in lawsuits for injury due to the negligence or intentional acts of another. Originally damages for emotional distress were only awardable in conjunction with damages for actual physical harm.  even though he didn't witness his son being hit by a car. (Wages v. First Nat'l Ins. Co., 79 P.3d 1095 (Mont. 2003).)

In January 2000, seven-year-old Skyler Wages was rollerblading in front of his parents' home when a truck hit him. Skyler's mother pulled the boy from under the truck, called an ambulance, and then phoned her husband, Gerald, who was at work. Their son's injuries were severe: He fractured his pelvis pelvis, bony, basin-shaped structure that supports the organs of the lower abdomen. It receives the weight of the upper body and distributes it to the legs; it also forms the base for numerous muscle attachments. , required several surgeries, and still has to be catheterized three to four times a day. Court records say his prognosis is unclear.

Gerald Wages sued driver Phillip Pegar's insurance company, arguing that it was "indisputably foreseeable" that he would suffer serious emotional distress upon learning of Skyler's accident and injuries. He cited the ongoing medical care Skyler required--including trips to other states for specialized surgeries, physical therapy, and medicine--and economic losses including lost wages for taking time off work to care for his son. The district court found for the defendants, expressing its fear that the plaintiff was trying to expand tort law A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others.  and that the case represented "a major leap of exposure to defendants."

On appeal, the case became an argument over which previous decision should settle the issue. The lower court had relied on Treichel v. State Farm, in which the Montana Supreme Court had specified "personal, on-the-scene, direct physical and emotional impact" as necessary for a claim of negligent infliction of emotional distress The tort of negligent infliction of emotional distress (NIED) is a controversial legal theory and is not accepted in many United States jurisdictions. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another  (NIED NIED National Research Institute for Earth Science and Disaster Prevention (Japan)
NIED Negligent Infliction of Emotional Distress (legal)
NIED Nutritional and Inflammatory Evaluation in Dialysis Patients Study
) in a recoverability case. (930 P.2d 661 (Mont.1997).)

Wages's attorney, Scot Schermerhorn of Billings, argued that the district court should have relied on an earlier case, Sacco v. High Country Independent Press, in which the court first held that a nonwitness could sue for emotional distress. (896 P.2d 411 (Mont.1995).) In his brief, Schermerhorn noted that "there has been no floodgate of litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
 since Sacco was decided in 1995," that the Sacco court had "repudiated the 'flood gate' rationale," and that "affirming the lower court decision subjects victims' rights victims' rights, rights of victims to have a role in the prosecution of the perpetrators of crimes against them. Nearly all U.S. states have enacted some victims' rights legislation.  to arbitrary lines of proximity and distance, and all but eliminates discretion in analyzing NIED claims."

The state supreme court agreed and reprimanded the lower court for "erroneously interpreting and applying" Treichel instead of Sacco, because Treichel dealt with one very specific question: the "distinction between NIED and loss of consortium" in an insurance coverage case. The supreme court said its ruling was meant only to clarify that question, not to overhaul its previous ruling: "It is clear from the remaining language of the court's opinion that our fundamental ruling in Sacco was undisturbed un·dis·turbed  
adj.
Not disturbed; calm.


undisturbed
Adjective

1. quiet and peaceful: an undisturbed village

2.
. ... The law as announced in Sacco remains applicable to the case before us."

Besides, in Sacco, "we severed sev·er  
v. sev·ered, sev·er·ing, sev·ers

v.tr.
1. To set or keep apart; divide or separate.

2. To cut off (a part) from a whole.

3.
 the previously mandatory nexus between witnessing the accident and foreseeability, and established that a defendant can owe a duty to a NIED claimant CLAIMANT. In the courts of admiralty, when the suit is in rem, the cause is entitled in the Dame of the libellant against the thing libelled, as A B v. Ten cases of calico and it preserves that title through the whole progress of the suit.  even in circumstances where the claimant was not at the scene of the accident. Therefore, the district court erred in premising its conclusions solely on the fact that Wages did not witness the accident."

This is not the first time the state's high court has wrangled over case law. Al Smith, executive director of the Montana Trial Lawyers Association, said the state rewrote its constitution in 1972, and "we're still shaking out what our laws are going to be." He said that numerous cases have "seen two different lines of authority, and in some cases three or four, coming down through the case law, and the court has had to say, OK, this is the one we are going to choose."

In Wages's case, the court reaffirmed the "inextricable in·ex·tri·ca·ble  
adj.
1.
a. So intricate or entangled as to make escape impossible: an inextricable maze; an inextricable web of deceit.

b.
" tie between duty and foreseeability established Pegar's duty not to cause harm, and concluded: "It is then the jury's responsibility to determine whether that duty was breached, whether that breach caused Wages to surfer 'severe' or 'serious' distress, and, if so, what damages Wages has suffered."

"It's a great decision," said Smith. "It is the court's recognition that there is just as much suffering whether you witness something in your front yard or you hear about it over the phone."
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Author:Sileo, Carmel
Publication:Trial
Date:Apr 1, 2004
Words:720
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