In a reversal of long-standing law, the Kentucky Supreme Court recently removed the requirement that a plaintiff suffer a physical impact or touching to recover for negligence claims involving emotional distress, often described as the “impact rule.” Now, a plaintiff must only show that the defendant was negligent and prove by expert testimony that the plaintiff suffered mental stress or an emotional injury that is greater than a reasonable person could be expected to endure given the circumstances.
In Osborne v. Keeney, No. 2010-SC-000430-DG, slip op. (Ky. Dec. 20, 2012), the plaintiff sued her former attorney, claiming he committed legal malpractice by failing to file a lawsuit within the applicable statute of limitations. By way of the “suit-within-a-suit” doctrine, which requires a legal malpractice plaintiff to establish that she would have recovered in the underlying lawsuit absent the malpractice, the plaintiff alleged that she lost the ability to recover from a pilot who crashed his airplane into the plaintiff’s home. The plaintiff presented medical evidence that she was emotionally unstable as a result of the destruction of her home and personal belongings. However, no debris from the plane crash struck the plaintiff. Thus, the Court was left to determine whether the “impact rule” would have prevented the plaintiff’s recovery for the purely emotional distress damages allegedly caused by the crash.
Noting that the rule existed in only a few remaining states, the Court abandoned the “impact rule” and held that a physical impact or touching was no longer required for recovery under a negligence theory. Further, the policy concerns which historically had supported the impact rule—e.g., damages being too remote, which may tend to promote fraud—were no longer sufficient to justify adherence to this rule. According to the Court, while the rule appeared on its face to be a bright line for determining when a plaintiff is entitled to recover for emotional injuries, in practice the rule had been stretched to the point of dilution. Therefore, the Court held that negligence cases should be analyzed under traditional principles of duty, breach, causation, and damages, the only caveat being that recovery should be provided for “severe” or “serious” emotional injury, which must be established by expert testimony.
At first blush, this holding appears to remove the very safeguards that prevented recovery for remote or dubious emotional injuries in Kentucky. A deeper look, however, dispels this notion. By holding that traditional principles of negligence apply when analyzing a claim for emotional injuries, the Court in effect put Kentucky in line with the majority of jurisdictions (including Ohio), which have adopted the “foreseeability test.” This test requires that when analyzing any negligence claim in Kentucky, which now includes one for purely emotional damages, consideration must be given to whether the harm resulting from the negligence was foreseeable. See T&M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 531 (Ky. 2006).
Nevertheless, it remains to be seen whether this holding will create a flood of litigation, as a plaintiff alleging purely emotional injuries and armed with the assistance of a willing medical expert may now have enough to create an issue of fact for the jury.
Should you have any questions regarding this decision, or any other question regarding general liability, do not hesitate to contact any member of Reminger’s General Casualty Practice Group.