Can a claimant recover for purely emotional injuries under the Jones Act and General Maritime Law if he suffered no physical contact or injury?
This is an issue that has garnered considerable attention as creative trial attorneys seek compensation for their clients. When first considering this issue, the Fifth Circuit Court of Appeals provided that purely emotional injuries would be compensated only when maritime plaintiffs satisfy the “physical injury or impact rule.” Either a physical injury or physical impact was required before emotional injuries could be compensated. One purpose for the impact or injury rule was to “provide courts with an objective means of ensuring that the alleged mental injury is not feigned.” A more important purpose of the rule was to provide a principled basis for limiting liability. Traumatic events may cause foreseeable emotional distress through a broad range of time and space. The courts recognized that without some way to limit these claims, anyone could claim emotional distress if involved in or if a witness to an accident. Gough v. Nat. Gas Pipeline Co., 996 F.2d 763 (5th Cir. 1993).
But what if the claimant has suffered no physical injury or impact? This was first addressed in Gaston v. Flowers Transp., 866 F.2d 816 (5th Cir. 1989). In Gaston, the plaintiff tried to recover for the emotional distress caused when he witnessed his half brother get crushed to death during a collision between a barge and a tug boat. The court refused to extend Jones Act liability to include Gaston’s “bystander liability,” which the court defined as “an attempt to recover damages for witnessing the death or injury of another crew member, without significant injury or fear of injury to himself.” Particular significance was given to the fact that “no evidence was presented tending to show that Gaston was ever concerned for his own safety.” The court in Gaston saw the creation of liability to one who could not claim the status of a direct victim as “inviting significant and unwelcomed innovations, such as permitting a recovery for purely emotional injuries . . . and permitting such a recovery, not for such injuries resulting from physical trauma to the Plaintiff, or even from his fear of such trauma to himself, but for the emotional injuries stemming from witnessing a bad sight.”
In Gaston, the plaintiff had urged that recovery should be permitted under a “zone of danger” theory, even for bystanders. In Louisiana, the “zone of danger” rule provides some mechanism for recovery of emotional injuries absent any physical contact which result from the witnessing of peril or harm to another if the plaintiff is also threatened with physical harm as a consequence of the defendant’s negligence. Gaynor v. State Farm, 727 So.2d 1279 (La. App. 4th Cir. 1999). In Gaston, the plaintiff was denied recovery because, even though witnessing the death of his half brother was traumatic, he made no showing that he thought himself in danger, or in harm’s way. In so holding, however, the Fifth Circuit preserved “zone of danger” as a possible theory of recovery for purely emotional harm. In Plaisance v. Texaco, Inc., 966 F.2d 166 (5th Cir. 1992) (en banc), a tug boat captain who was towing a barge struck a pipeline. The rear of the flotilla was engulfed in flames, but no one was injured. The captain sued, claiming post traumatic stress disorder. The trial court dismissed the captain’s claim, finding that his PTSD “was not a reasonably foreseeable consequence of the alleged negligence of his employer.”
As a consequence of this evolution, the present state of the law provides for recovery of purely emotional injuries if certain criteria are met. As stated by Judge Martin Feldman in Anselmi v. Penrod Drilling Corp., 813 F. Supp. 436 (E.D. La. 1993), “Under the right circumstance, one may recover for purely emotional harm under a zone of danger theory if the facts place the plaintiff within the definable zone. What is necessary for a valid claim is that the claimant must have been objectively within a zone of danger, he must have feared at the time of the incident that his life or person was in danger and his emotional injuries must be reasonable foreseeable consequence of the defendant’s alleged negligence.
The zone of danger theory preserves traditional tort doctrines of negligence, legal causation and foreseeable risks.
The most obvious of the criteria is that the claimant have been in the “zone of danger.” This requires an objective analysis of the facts by the judge or jury. To have been within the zone of danger, the plaintiff must have experienced fear of death or injury due to his proximity to an actual or near accident. (See Ainsworth v. Penrod Drilling Corp., 972 F.2d 546 (5th Cir. 1992) where plaintiff’s claim for emotional injury was denied as he was 100 feet from the point of impact of a crashing helicopter and did not prove he feared injury due to the crash.)