The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/382597
INTRODUCTION. For years, the "impact" rule has limited claims for negligent inflic- tion of emotional distress throughout the Commonwealth. Under this well-known rule, an action for negligent infliction of emotional distress would "not lie for fright, shock or mental anguish which [was] unaccompanied by physical contact or injury." 1 Stated simply, no physical "impact" resulted in no recovery for the plaintiff. While the rule had its critics, it served a useful purpose to defendants who could rely on the impact rule as a defense and dispose of emotion- al distress claims, which lacked physical impact, early in litigation. On Dec. 20, 2012, the Kentucky Supreme Court issued a ground- breaking opinion in Osborne v. Keeney 2 and eliminated the impact rule. In its place, the Court set forth a new test requiring a plaintiff seeking emotional damages to prove that he or she suffered a "se- rious" or "severe" emotional injury by presenting expert medical or scientific proof. As soon as the opinion was handed down, a debate arose among Kentucky lawyers as to the scope of its application. Does it apply only in "non impact" cases or does it apply to all cases involving claims for emotional distress, even if these claims arise from actual physical injury caused by "impact." Nearly two years have passed since Osborne and some of the ini- tial questions left unanswered have been addressed. Nevertheless, questions remain. While courts and attorneys may have some trepidations in applying and interpreting the new rule, several recent opinions provide some insight into this key decision and offer litigants a compass – if not a road map – for emotional distress claims moving forward. These cases underscore that attorneys in Kentucky must take note of Osborne and integrate it into their tort practice. THE OLD "PHYSICAL IMPACT" TEST – A "BRIGHT LINE" RULE THAT WAS OFTEN NOT SO BRIGHT. For decades prior to Osborne, Kentucky courts applied the "physi- cal impact" rule to claims for negligent infliction of emotional dis- tress. In the 1942 case, Morgan v. Hightower's Adm'r., 3 the Ken- tucky Court of Appeals discussed the purpose of the rule and showed the court's suspicions toward emotional distress claims, ex- plaining that they "are too remote and speculative, are easily simu- lated and difficult to disprove, and there is no standard by which they can be justly measured." While the standard was, at least ar- guably, arbitrary, it nevertheless represented a bright-line rule that courts could presumably follow. Yet, as courts applied the rule in subsequent decades, it became in- creasingly apparent that the rule led to inconsistent – and often in- equitable – results. A striking example of this is the 1988 case, Wil- hoite v. Cobb. 4 In Wilhoite, a truck driver hit and killed a minor child. The truck driver settled the wrongful death claims with the child's estate. The child's mother, who witnessed the horrific acci- dent and her child's death, sued the truck driver for negligent inflic- tion of emotional distress. At first glance, these facts seem to be a benchmark example of when a negligent infliction of emotional distress claim might be vi- able. Yet, the Kentucky Court of Appeals, affirming the trial court, h eld that the moth- er's claim was b arred. The Court ex- plained, "the thing w hich causes the injury to a victim must also come in con- tact with the witness for that witness to recover for men- tal distress. We are bound by this precedent." 5 Thus, since "Mrs. Wilhoite did not herself receive any physical contact or injury from the appellee; therefore, we con- clude that the court did not err in dismissing her claim insofar as it was based upon the tort of negligence." 6 Perhaps the most controversial aspect of the Wilhoite decision was the Court's rejection of the plaintiff's argument that light rays physi- cally impacted her eyes, thus satisfying the impact rule. In hind- sight, this argument appears to be a stretch. But just eight years earlier, the Kentucky Supreme Court, in Deutsch v. Shein, ruled that a plaintiff could satisfy the physical impact rule by providing evi- dence that he was contacted by x-rays, holding that "[w]e find no difficulty in concluding that the physical contact necessary to sup- port the claim for mental suffering occurred when, through Dr. Shein's negligence, Mrs. Deutsch's person was bombarded by x- rays." 7 Indeed, courts had effectively watered down the physical impact rule to the point that contact, which was "minimal" or "slight, trifling, or trivial," was sufficient. 8 Despite these inconsistent results, courts continued to apply the impact rule for over 20 years after the Wilhoite decision. During this time, attorneys were stuck interpreting an ambiguous rule while, at the same time, question- ing whether it would be abolished. That time came in 2012. THE KENTUCKY SUPREME COURT ISSUES OSBORNE V. KEENEY – AND RAISES MORE QUESTIONS. After decades of confusion, the Kentucky Supreme Court eliminat- ed the physical impact rule in Osborne v. Keeney. 9 In Osborne, an individual sued after a pilot negligently crashed an airplane into her house. The plaintiff alleged, among other things, that she suffered emotional distress due to the crash. However, she was not physical- ly contacted or injured. The defendant attempted to rely on the impact rule, arguing that because the plaintiff had not been physically contacted she could not sue for mental damages. Surprisingly, the Court rejected the defense and, in doing so, eliminated the long-established impact rule. The Court explained that: [T]he supposed beauty of the impact rule is that it draws a bright line for determining when a plaintiff is entitled to re- cover for emotional injuries. At first blush, this may make sense and seem to counterbalance the feared possibility of subjectivity in finding emotional injury. But, in practice, what constitutes a sufficient impact for purposes of liability is not an easy determination for courts. 10 12 B&B; • 9.14 F E AT U R E : T O R T S EMOTIONAL DISTRESS CLAIMS IN A POST-IMPACT WORLD: GAUGING THE IMPACT OF OSBORNE V. KEENEY By: Chris Jackson and Lucas Humble