Advancing the Law: Bystander Recovery

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As plaintiff’s attorneys, we must always be aware of opportunities to extend the reach of the law in ways that will help our clients. At Berman & Simmons we pride ourselves on working at the frontier, pursuing justice creatively and aggressively in cases where that is possible. A recent example of this approach arises in a case we now have pending before the Superior Court, and which is probably headed to the Law Court, that will help define who is “closely related” to a victim of negligence for purposes of being able to assert a so-called “bystander” claim for the negligent infliction of emotional distress (NIED).

Legal Background
Maine law, like that of most states, provides that a bystander who witnesses a negligent injury to a loved one may recover damages for resulting severe emotional distress. This rule was established when the Maine Supreme Judicial Court (Law Court) adopted the three-part test for bystander claims first set forth in the California case ofDillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 423 (Me. 1982); Cameron v. Pepin, 610 A.2d 279 (Me. 1992). Under the case law, in order to recover as a bystander, a plaintiff must demonstrate that she: i) was present at the scene of the accident, ii) suffered serious mental distress as a result of contemporaneously perceiving the accident, and iii) was closely related to the victim. While the class of persons entitled to bring a bystander claim presumably includes the nuclear family, i.e., parent, spouse or child, the Court has not had occasion to further define who is “closely related” to a victim of negligence.

The Pending Case
Our case involves a horrific motor vehicle accident in which a young man was killed while attempting to turn into the driveway of the home that he shared with his fiancée and their five year old son. As he waited for oncoming traffic to clear, his car was struck from behind by a vehicle whose operator had failed to notice his signal and brake lights. The impact drove his car into the path of an oncoming tractor trailer, fully loaded with concrete blocks, whose operator had no chance to avoid a collision. The fiancée was standing at the end of their driveway waiting for her husband-to-be. She watched as the tractor trailer rolled over the top of his car, crushing it with him inside. She saw him crawl from the wreck, ran to him and comforted him as he struggled to breathe. She helped as emergency medical personnel placed him in an ambulance for transfer to a medical helicopter. That was the last she saw of him, as he died on the way to the hospital.

The Issue
The facts of this case are compelling indeed, but they raise the question under Dillon: is our client, the decedent’s fiancée, able to recover for the severe emotional distress she suffered from witnessing the crash and its aftermath. This case, involving an unmarried couple, will be one of first impression for the Law Court.1

Structuring the Case
In every case involving an open question of law, it is crucial for plaintiff’s counsel to structure the procedural posture of a case so that it can be resolved in the most expeditious manner. In the pending case, we used stipulations in the underlying wrongful death case (brought exclusively for the benefit of the couple’s minor child) to set the stage for the NIED case. We did this knowing that the fiancée was not a beneficiary under the wrongful death statute, and that her only chance at recovery for her own grievous losses would be her separate “bystander” claim. To clearly and efficiently present that claim, we prevailed upon the defense in the underlying case to stipulate that the negligence of its insured was the sole cause of the accident, that the plaintiff suffered severe emotional distress as a result of contemporaneously witnessing the accident and injury, and that her damages for emotional distress were in excess of the applicable policy limit.2 In other words, by stipulation we were able to isolate the unresolved legal issue of whether an unmarried partner is within the class of people “closely related” to the victim.

Of the many courts throughout the country that also follow the Dillon test, there are different views of who may qualify as “closely related” to the victim. Some cases hold that a formal marriage is required in order for a cohabitant to be a foreseeable plaintiff. See, e.g., Milberger v. KBHL, LLC, 486 F. Supp. 2d 1156 (D.HI. 2007). Others have concluded that whether persons are “closely related” is a jury question turning on the specific circumstances of their relationship. Several courts have held that engaged cohabitants may meet this test. See, e.g., Graves v. Estabrook, 149 N.H. 202, 818 A.2d 1255 (2003); Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 371 (1994).

We have a firm basis to believe that Maine will side with those states that hold that whether an unmarried cohabitant is “closely related” to the victim is properly a factual question. As the Court has said, the Dillon factors:

    • …form a basic framework for the disposition of emotional distress claims in bystander actions. However, it should be remembered that since the imposition of liability is ultimately a factual determination which must be made on a case by case basis, the


    •  test should not be applied


     to bar arguably valid claims.

Culbert, 444 A.2d at 437 (emphasis added). See Graves, 149 N.H. at 204, 818 A.2d at 1258 (Dillon factors are not a rigid framework but contemplate that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary person under such circumstances should reasonably have foreseen). Certainly, in our view, the Law Court should hold that our client is entitled to have her claim heard by a jury.

Further Development
Beyond engaged cohabitants, it is natural to ask what further development in the law of such bystander claims is to be anticipated. While there is some support in other states for recovery by engaged cohabitants, to date, there would appear to be only a few cases supporting recovery by a non-engaged cohabitant, as was involved in Arnott. However, the logic of the Law Court’s view of the Dillon test is that allowing such claims, where the facts of the relationship support it, including for gay and lesbian couples, is inevitable. This is yet a further frontier that must be explored in future cases in Maine by attorneys for plaintiffs as part of our ongoing effort to extend the reach of civil justice.

1 In thinking about this case, it is important to note that our firm has successfully argued in the Superior Court that registered domestic partners can be “closely related” for purposes of bystander NIED claims. Arnott v. Liberty Mut. Fire Ins. Co., Docket No. CV-09-499 (Cumberland, July 12, 2010) (Crowley, J.). That case was resolved without appeal.

2 It is also important to note that the terms of the applicable policy support the wrongful death and the bystander NIED claims as subject to separate, per-person policy limits. See Ryder v. USAA General Indem. Co., 2007 ME 146, 938 A.2d 4.