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Is it a Tort When a Company Gives Bad News, Then Good News, Then Bad News? Why the West Virginia Miners' Families Can Probably Sue for Their Emotional Distress


Tuesday, Jan. 10, 2006

In the recent West Virginia mining tragedy, families notoriously heard a false report from the mining company that their trapped loved ones were alive, when they really were dead - as the company acknowledged a few hours later.

The experience of hearing this sequence of reports was obviously traumatic. But was it also tortious?

Some family members told the press they intended to sue the mining company for negligent infliction of emotional distress - seeking to recover for the unique pain associated with this experience. If they do sue on this theory, will they succeed?

The families may also bring separate wrongful death suits, of course. But in this column, I will concentrate on whether their negligent infliction of emotional distress suits could succeed - explaining both the general legal background of that tort in the various states, and West Virginia's attitude toward it, in particular.

The Old Cause of Action for Negligent Infliction of Emotional Distress: Its Limits

Classically, emotional harm alone could rarely serve as the sole or primary wrong to be compensated in a negligent infliction of emotional distress claim. Instead, to recover damages, one traditionally had to have suffered some physical impact or physical symptom - or had to have been within what courts call a "zone of danger" of actual physical harm, by being physically exposed to a real risk of injury that triggered physical manifestations of distress.

Paradigm law school examples of the kind of plaintiff who could succeed in showing this kind of physical injury include: A pregnant woman who is exposed to a risk causing just enough stress to induce a miscarriage; a mother who suffers physical symptoms, and even attempts suicide, after seeing her child nearly decapitated by an elevator door while she was in the same zone of danger as the child; and a mother who is physically injured as a result of having to watch a hospital employee who drops and hurts her baby right in front of her.

Sometimes courts held that extreme mental anguish, even in the absence of physical manifestations, could suffice. Emotional distress claims were based, for instance, on the suffering of plane crash victims who were aware that they would soon crash and actually did, and also on the suffering of plane passengers who were afflicted by fear of flying after a harrowing flight where death was all but certain - until the pilot regained control after a 34,000-foot tailspin plunge.

In summary, courts imposed a fairly high threshold for claims for pure emotional distress, owing to the difficulty of establishing proof of authentic distress and the difficulty of measuring its severity. By forcing plaintiffs to show physical manifestations, and forcing them to show that they were in a zone of danger, courts thought they could discourage frivolous claims.

But courts soon realized that strict adherence to the rules surrounding the tort of negligent infliction of emotional distress left too many worthy plaintiffs under-compensated. Accordingly, many states abandoned various criteria associated with the tort; and many states carved out exceptions for particularly heinous situations to allow victims to recover.

Modern Case Law on Negligent Infliction of Emotional Distress

For these reasons, some modern negligent emotional distress claims have avoided dismissal even though the plaintiff could not claim he or she was in the zone of danger, nor that his or her emotional distress manifested itself physically.

For example, a court in New York State- a jurisdiction that remains especially stingy about the cause of action - allowed a man to sue a health care provider for his emotional distress when that provider incorrectly reported to his doctor that he was sterile.

Moreover, while Florida required an emotional distress plaintiff who was falsely and negligently told he tested HIV-positive to show that treatment and/or injections for his HIV status had harmed him, Alaska, taking a more modern view, imposed no such requirement. (Ohio, though, stuck to the old thinking and refused to honor an emotional distress claim at all in this kind of scenario).

Many states also have allowed emotional distress suits by family members based on the negligent mishandling of, or botched burial of, a loved one's corpse. (This exception is memorialized in § 868 of the Restatement of Torts.) For instance, Maine allowed an emotional distress claim by a plaintiff who received from a funeral home a bag of plaintiff's father's effects with someone else's "bloodied leg, severed below the knee, and bluish in color." As that court put it, "Courts have concluded that the exceptional vulnerability of the family of recent decedents make it highly probable that emotional distress will result from mishandling of the body."

Similarly, a number of states permit emotional distress claims when a telegram incorrectly announces the death of a loved one (though others, like Nebraska and Massachusetts, have rejected similar claims).

Could such a rationale be offered to permit an emotional distress claim - such as the West Virginia miners' families' potential claims -- for incorrectly announcing that a loved one is still alive? As in the similar scenarios, it is fair to say that it is "highly probable that emotional distress will result." Or, put another way, bogus claims of emotional distress in this scenario will be few.

Many Modern Courts Focus on Foreseeable Distress to Bystanders

Many modern courts have simply moved to a more general foreseeability analysis, asking if the defendant reasonably should have foreseen the extreme mental distress that would result from its negligence.

An influential modern articulation of the elements of the tort of negligent infliction of emotional distress, as asserted by bystanders, comes from New Jersey, in a case called Portee v. Jaffee:

The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare . . . No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

But despite its sympathy for distressed victims, the New Jersey court did set some limits: It made sure the relationship between the claimant and the source of the emotional distress was sufficiently close: "It is the presence of deep, intimate, familial ties between the plaintiff and the physically injured person that makes the harm to emotional tranquility so serious and compelling." Indeed, the court explicitly held that a close familial relationship is necessary for a claim of emotional distress for being a "bystander," witnessing a death or injury of a loved one. Third cousins once removed, it seems, need not apply.

Another predicate of such a cause of action, the court held, is physical proximity to the death or injury: "[O]bserving the death or serious injury of another while it occurs is an essential element of a cause of action for the negligent infliction of emotional distress."

Still, other states have a more relaxed "sensory perception requirement," requiring only a mediated, albeit substantial, experience of the loved one's injury or death. A Massachusetts court, for example, has held that a "plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for the shock than a plaintiff who rushes instead to the hospital."

West Virginia Law on Liability for Family Members' Emotional Distress

Due to the wide variety of state approaches, West Virginia miner family members who are serious about suing for the miscommunication by the company will likely need to consult West Virginia law.

Unfortunately, as the Supreme Court of Appeals of West Virginia admitted as recently as 1992, in Heldreth v. Marrs, the state's "view on the issue of plaintiff recovery for the negligent infliction of emotional distress has never been fully developed."

The Heldreth court itself, however, found the requirement that the plaintiff suffer physical injury "outdated," and rejected any requirement that the plaintiff be in a a"zone of danger." That court ultimately embraced a bystander rule, with a foreseeability component:

A defendant may be held liable for negligently causing a plaintiff to experience serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff suffer critical injury or death as a result of the defendant's negligent conduct, even though such distress did not result in physical injury, if the serious emotional distress was reasonably foreseeable.

This rule alone would probably leave out the miners' families - who did not witness the underground injuries and deaths that occurred. And the court once again applied Heldreth as recently as 2002, arguably reaffirming its logic there.

Fortunately, however, the miners' families may benefit from a more expansive view of when emotional distress claims can succeed. Four days after Heldreth, and also in 1992, West Virginia's high court wrote in Ricottilli v. Summersville Memorial Hosp. (a case about corpse mishandling) that "an individual may recover for the negligent infliction of emotional distress upon a showing of facts sufficient to guarantee that the emotional damage claim is not spurious."

Similarly, in 1996, in Marlin v. Bill Rich Construction, the Supreme Court of Appeals of West Virginia signaled that it wished to be open-minded and expansive in entertaining negligent infliction of emotional distress claims.

In 1997, the Supreme Court of Appeals of West Virginia decided another case that relaxed the requirements of the cause of action. Stump v. Ashland held that claimants need not directly witness the injury or death of a loved one. Instead, mere presence at the injury-producing event can serve as a predicate to satisfy what the court called the "sensory observation" requirement of Heldreth.

If the Miners Do Bring Emotional Distress Claims, They're Likely to Win

Ultimately, matters look promising in West Virginia for the miners' families; West Virginia is much less stingy than many other states in awarding such claims.

Still, it's important to note that the state's high court has, thus far, only revealed a propensity and openness to developing its law of emotional distress in a generous direction. The courts' own acknowledgement that the law is underdeveloped, however, may lead some lower state courts to try and import limitations from other states that have taken less modern approaches - approaches that do not welcome claims of pure emotional harm.

Strategically, the miners' families may do well to analogize their situation to Ricottilli - and the mishandling of corpse cases more generally. But even if they are limited by Heldreth's test, they may be able to convince courts to broadly interpret what it means to have "witnessed" the death of a loved one.

Recall that Stump held that presence at the injury-causing event is enough to make one count as a witness. Watching on television, and waiting for news from the company, while gathered together near the mine, is, realistically, as present as a loved one can be, when a miner is trapped underground.

In this instance, serious emotional distress was undoubtedly authentic, and reasonably foreseeable. For these reasons, it should be compensable. Let's hope the West Virginia courts agree.

Ethan J. Leib is a professor of law at the University of California, Hastings College of the Law. His book, Deliberative Democracy in America: A Proposal for a Popular Branch on Government, came out in paperback this summer. His next book, The Search for Deliberative Democracy in China, is slated for publication in October 2006. Earlier, he co-wrote another column for this site with FindLaw columnist and fellow U.C. Hastings professor Vikram David Amar, on Governor Arnold Schwarzenegger and gay marriage in California.

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