THE SKY IS FALLING! CAN I SUE?
"One day, when Chicken Little
was scratching among the leaves,
an acorn fell out of a tree
and struck him on the head.
'Goodness gracious me!'
said Chicken Little.
'THE SKY IS FALLING!
I must go and tell the King.'"
A children's folk tale.
A few years ago, employees at a Honda Dealership in
Santa Ana, California, according to a California Court of Appeal decision,
"watched a corporate jet fall out of the sky. They feared the jet would
crash into them. They feared injuries from the ensuing explosion." The
jet did not strike them, but rather, crashed upon nearby ground.
The corporate jet being substantially larger than an
acorn, and in the absence of any monarchy in California, the employees elected
to go and tell the judge.
The employees thus sued the owners and operators of
the jet claiming "mental anguish" as a result of the crash. The
trial court dismissed the case and the employees appealed the decision to the
Court of Appeal.
Recourse to the Court of Appeal did not prove
fruitful. The Court of Appeal confirmed that not every emotional distress
caused by another's negligence entitles the injured party to damages. The
Court of Appeal observed that, "No one, saint or sinner, can go through
life without `negligently' inflicting emotional distress on others." To
make the point, the court cites a dissolution of marriage action and notes that
"heartache and pain are inherent in certain human relationships."
Although this may come as a surprise to some, courts
occasionally disagree with one another and reach diametrically opposed
In a federal action entitled In Re Air Crash
Disaster near Cerritos Cal., "a couple at home heard two loud noises
and suffered severe shock and fright when two airplanes collided in mid-air and
crashed 100 yards away." The federal court concluded that California law
would "permit the couple to recover for their emotional distress damages,
albeit with one judge dissenting because the couple did not actually witness
the crash." The federal courts have their own procedural law, they are
required to follow the substantive law of the state in which the federal court
Interestingly, in the Honda employee case, the
California Court of Appeal disagreed with the federal court's interpretation of
California law, and observed that, "The law can hardly permit a major tort
suit for unpredictable emotional distress damages for every near-miss and
otherwise uneventful unsafe lane change."
In a refreshingly clear statement of the issues,
although relegated to a footnote in the case, the Court observes:
there a soul who has not witnessed an accident or two over the past few years?
Or at least had a driver come speeding up from behind and momentarily worried
that a crash was imminent? The bottom line of our dissenting colleague's
analysis is that all witnesses to an accident who momentarily fear for their
safety but who otherwise escape -- indeed, those who fear for their safety even
when there is no accident but merely a close call -- may sue the wrongdoer for
money as compensation for emotional distress. Wow! If this were the law,
insurance premiums would skyrocket and the courts would groan from the sheer
weight of litigation. The ultimate lawyers' paradise would have arrived:
everyone would be suing everyone."
Not only do the federal and state courts on occasion
disagree with one another, judges within the same court frequently disagree.
Thus, we have the concept of a majority opinion and a dissenting opinion in the
same judicial decision.
In this action, the majority, reaching into its
erudite bag of legal phrases, observes that the nature of a pure emotional
distress claim is "loosey goosey". The majority also cites the
Dreamworks SKG production of "Saving Private Ryan" and notes that
"Private Ryan, the fictional embodiment of a generation of World War II
veterans, stoically endured the death and dismemberment of close comrades who
gave their lives to rescue him, and then went on to live a productive
The dissenting opinion acerbically notes that the
majority rejected the claim because of "what they label the loosey goosey
concept of emotional distress." The dissenting opinion continues:
"Actually, my brethren are just unimpressed with `weak' people . . . . if
they had their way, we would all be certified war heroes. We certainly would
not reward those whose succumb to fear as a result of someone else's
negligence." In case you thought that the emotion gene has been excised
from judicial DNA, this dissenting comment should dispel you of the thought. Substitute
your favorite epithet for "my brethren".
The moral of the story? Not every lawsuit concludes
with a happy plaintiff! Chicken Little was gobbled up by Foxy Loxy on the way
to tell the king. Some plaintiffs are gobbled up by litigation expense on the
way to tell the judge!
[This column is intended to provide general information only and
is not intended to provide specific legal advice; if you have a
specific question regarding the law, you should contact an
attorney of your choice. Suggestions for topics to be discussed
in this column are welcome.]
Reprinted from Fabricare
Myles M. Mattenson © 2009