Oregon Case Law Update: Oregon Expands Liability for Negligent Infliction of Emotional Distress

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Oregon Case Law Update: Oregon Expands Liability for Negligent Infliction of Emotional Distress

From the desk of Jeff Eberhard: Since 1986, Oregon has followed the impact rule in claims for negligent infliction of emotional distress.  This rule prohibited recovery in claims for emotional distress unless the plaintiff was physically injured. In this case, the Oregon Supreme Court was asked to reject this rule and adopt another rule that would allow the plaintiffs to proceed when there was no physical impact.  Read on to see how the Court addressed this issue.

Claims Pointer: In this negligence action arising out of a claim for emotional distress after two brothers witnessed the death of their seven-year-old brother caused by a negligent driver, the Oregon Supreme Court held that the plaintiffs stated a claim upon which relief could be granted, despite not being physically harmed.  In so holding, the Court rejected the “impact rule” and the “zone of danger” test, adopting in their place the “bystander rule.”  Plaintiffs now must (a) witness the event causing injury or death to a third person as it happens, and (b) be a close family member of the injured or deceased third person to recover in a claim for negligent infliction of emotional distress.  The case may also allow additional cases to proceed for negligent infliction of emotional distress in cases where no one is physically injured.

Philibert v. Kluser, 360 Or 698 (December 22, 2016)

Three brothers, ages seven, eight and twelve, were crossing a street in a crosswalk with the walk signal when a driver negligently drove his pickup truck through the crosswalk, striking and killing the youngest boy.  The two older boys narrowly avoided injury, but they suffered serious emotional injuries as a result of witnessing their brother’s death.

Through a guardian ad litem, the two surviving brothers (“Plaintiffs”) sued the driver, alleging negligence and seeking to recover for their emotional...

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