The Law Court Clarifies Who May Recover in a Bystander Emotional Distress Claim
Existing Law Court precedent allows emotional distress damages to a mother who sees her young son hit by a car as he crosses the street in front of her, but bars recovery if she learns about his injury in a telephone call and then rushes to the hospital to see him. The distinction hinges on whether the mother “contemporaneously perceived” the injury-producing event. In Coward v. Gagne & Son Concrete Blocks, Inc., the Law Court addressed this contemporaneous perception requirement in bystander emotional distress claims, issuing an opinion helpful to plaintiffs both for its clarity and its potential to expand who may recover.
Thomas Coward was at his family home when Gagne & Son Concrete Blocks delivered rebar weighing one ton, for use in his family business. He heard a “loud bang” followed by screaming and rushed over to see his son pinned under the rebar and bleeding from the mouth. Mr. Coward did not see the rebar fall and at the time he heard the loud bang and scream did not know what had happened—he thought perhaps someone had dropped a barrel of oil.
Following the lead of other jurisdictions, the Law Court clarified that contemporaneous perception can involve any of the five senses. In this case, the father heard the injury being inflicted on his son the moment it happened, when he heard the loud bang from the rebar dropping and his son’s screams. The father met additional requirements for contemporaneous perception laid out by the Law Court: he was at the general scene of the event and due to hearing the event he investigated and saw his son’s injuries and death in the event’s “immediate aftermath.”
The Coward decision is notable in allowing a close family member to recover bystander emotional distress damages even though he did not immediately understand what had happened, or realize his son had been injured. Rather than drawing strict bright-line rules, the Law Court instead focused on whether the family member had “contemporaneous involvement in all that went on” at the scene. The Law Court’s analysis potentially opens up recovery for close family members who perceive an injury causing event by even more indirect means—for instance by hearing the screams of a witness—or who find and see their injured family member more than a few seconds after the event.
The Law Court Expands Access to Voir Dire When Race Is An Issue
In a criminal case whose holding applies equally to civil cases, the Law Court provided important guidance to trial courts and litigants on the availability of voir dire when race is an issue. (State v. Fleming). In prior decisions on voir dire, the Law Court has noted that a trial lawyer wishing to conduct voir dire to discern potential jurors’ bias against her client, must first lay a foundation showing widespread societal bias against persons like her client. In Fleming, the Law Court announced that whenever a trial includes racial issues, trial courts are required to thoroughly probe the issue of racial bias in voir dire. This decision was based on research from the American Bar Association showing that racial and other minority groups experience unequal outcomes in all aspects of the justice system.
This decision is significant because it acknowledges that simply asking whether a potential juror can be fair and impartial is not enough to uncover racial bias, which is often unconscious and embedded in social and governmental systems. The Law Court called on lawyers, judges, and legal professionals to “heighten their awareness and understanding of implicit bias, its role in our civil and criminal justice system, and in particular, the problems that it creates with regard to juries.” Trial lawyers will need to develop techniques and strategies to uncover implicit bias in voir dire, in order to meet their obligations to zealously represent clients.