In 1986, the Oregon Court of Appeals ruled that a person could not recover for emotional damages unless he or she suffered some physical contact from a negligent action. Saechao v. Matsakoun, 78 Or App 340, 717 P2d 165, rev dismissed, 302 Or 155 (1986), <http://law.justia.com/cases/oregon/court-of-appeals/1986/717-p-2d-165.html>. That was the law in Oregon for 30 years. In a recent case, however, the Oregon Supreme Court disagreed, expanding the right to recover emotional damages. Philibert v. Kluser, 360 Or 698 (2016), <http://www.publications.ojd.state.or.us/docs/S063738.pdf>.
Both cases involved car accidents in which one of several siblings was killed in the presence of the others. The only major difference was that in Saechao, one of the three survivors was struck by the car, but in Philibert, neither survivor was struck. The survivors in both cases sued for emotional damages, with the injured brother in Saechao also seeking recovery for physical injuries.
When a claim involves a violation of some other right than that of being unharmed by others’ negligence, Oregon had, by 1986, established in several cases that emotional damages might be recovered. A few of those cases involved negligent behavior, but they also involved highly emotional situations, such as mishandling of dead bodies or allowing children to be taken out of the country by noncustodial parents in violation of a custody order. In 1986, the Saechao court ruled that the victim of the wrongful conduct required some physical contact to qualify for emotional damages.
The Oregon Supreme Court had agreed to hear the Saechao case, but the parties settled. As a result, the Court of Appeals opinion stood as the law until 2016, leaving Oregon as one of the last four states to require a physical impact. In Philibert, however, the Supreme Court ruled that the Court of Appeals had set the bar too high for people not physically impacted and too low for people suffering only a minor impact. In deciding the appropriate conditions to allow emotional damages, the court noted that it could not simply allow recovery in all cases of foreseeable emotional harm because that was not an effective limit either.
In framing the scope of people who might recover the court identified bystanders who witness a severe physical injury to a close family member. The court then had to decide how close the bystanders had to be. The court also rejected a rule adopted by other states that the claimant be within the zone of physical danger, as unfair to claimants who were nearby but not directly endangered.
Instead, the court chose a standard proposed by the American Law Institute in a 2012 summary of national injury law. The rule is now that a close family member may recover if he or she experiences the incident as it happens. The relative does not need to be directly threatened with physical harm, but has to be on the scene. The injury must be sudden and serious. Furthermore, only serious emotional distress will be recognized. That is common in most emotional distress claims when there is no physical injury.
The rule in Washington is slightly broader than in Oregon. It allows a relative to recover not only for incidents seen as they happen, but also if the relative comes on the scene shortly afterward and sees the immediate aftermath before there is a significant change in circumstances. Hegel v. McMahon, 136 Wash 2d 122, 960 P2d 424 (1998), <http://courts.mrsc.org/supreme/136wn2d/136wn2d0122.htm>.
Oregon now follows a similar rule to 29 other states in allowing recovery by bystanders at the scene. If you are unfortunate enough to witness a serious injury to a close family member, you may now have a claim against the person who caused that harm, if the injury was negligent. Unfortunately, the requirement that the emotional harm be serious may require psychological evaluations and expensive experts, which would normally be paid out of the recovery. It is probably a good idea to document your emotional condition before and after the event to demonstrate that you suffered serious harm. You should talk to a lawyer before bringing your claim so that you can get a good idea of the potential value of your claim and how much it would cost to prove.