A truck driver on Interstate 44 in Missouri could not recover the injuries he suffered when he suffered injuries from witnessing when he got out to check defendant’s car and saw the driver and his wife badly hurt and their young daughter killed. The trucking accident happened when the a care driven by the defendant crossed over the median and hit plaintiff’s tractor trailer head-on. The truck driver sued the driver of the car that hit him, even though he was not physically injured. The truck driver claimed that he suffered from post-traumatic stress disorder and sued the driver for negligent infliction of emotional distress the truck driver was not treated for physical or emotional injury from the impact itself or any pre-impact fear of collision. Plaintiff’s diagnosable emotional distress, mental treatment and lost time from work were from viewing the deceased child after the collision.
The truck driver claimed his damages were recoverable under Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. Banc. 1983). This case replaced the impact rule with a requirement that to warrant recovery, emotional distress must be medically diagnosable and serious enough to require medical attention. The truck driver claimed his damages were the result of his post-accident viewing of the injured parties.
The trial court granted summary judgment since the truck driver, when viewing the deceased child, was not in the zone of danger and did not reasonably fear injury to himself. The court also held that the defendant, who was unconscious after the accident, had no duty to protect plaintiff from seeing his deceased child.
On August 6, 2007, the Missouri Court of Appeals, Southern District, affirmed the trial court’s grant of summary judgment against the truck driver. The court held that people who escape injury from the collision itself but then are harmed by seeing injured persons thereafter are seeking “bystander recovery”. Missouri courts have not permitted bystander recovery. See Jerrett v. Jones, 28259 (Mo. Ct. of Appeals, Southern District, August 6, 2007). In Jerrett, the court held that while the tortfeasor has a duty to project persons from physical harm, there is no duty from preventing emotional distress arising from viewing the results of an accident. In essence, the court held while defendant did have a duty to prevent injury to his own daughter, there is no basis for plaintiff to recover and defendant had no duty or ability because of being unconscious, to protect plaintiff from seeing defendant’s deceased child.
The court also affirmed the trial court’s grant of summary judgment because bystander recovery, is generally limited to someone closely related to the victim. The Restatement Second of Torts, §436(c), standard limits recovery to the immediate family. The third Restatement of torts will allow a "close family member" to recover damages for witnessing a negligently caused injury.
