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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, which recently ruled that a father was entitled to compensation for emotional distress 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, 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 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 (NIED) 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 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 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. ... The law as announced in Sacco remains applicable to the case before us."

Besides, in Sacco, "we severed the previously mandatory nexus between witnessing the accident and foreseeability, and established that a defendant can owe a duty to a NIED claimant 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" 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
Date:Apr 1, 2004
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