LawyersUSA

Family members who saw a young boy bloodied and apparently lifeless immediately after he was struck by a car can sue for intentional infliction of emotional distress, the Tennessee Supreme Court has ruled in denying an insurer's motion for summary judgment.

The plaintiffs were the mother and siblings of a boy who was struck by a vehicle in front of his school. He sustained permanent brain damage.

The mother was immediately contacted and informed of her son's accident but did not know how badly he was injured. When she arrived with her other children they saw the boy lying unattended on the pavement in a pool of blood. They screamed and tried to reach him but were restrained.

The family sued the driver and the school district. They also served their own insurer with the complaint pursuant to the state's underinsured motorist law.

The insurer asserted that the family's emotional distress claims failed because they didn't witness the event that actually caused the child's injury.

The family argued that sensory observation was not an essential element of the claim due to their close relationship with the child.

The court agreed.

"[W]e have historically recognized that it is easily foreseeable that persons who have a close personal relationship with an injured party will suffer serious or severe emotional distress when they see someone 'near and dear' to them injured," the court said.

Here, "[the family has] alleged that [the child's] serious injuries were caused by [the driver's] negligence. They have demonstrated that they have a close and intimate personal relationship with [the child]. They have demonstrated that they observed [the child] in a seriously injured state at the accident scene shortly after the accident occurred."

The court cited similar cases from New Hampshire, New Jersey, Texas, Washington, Wisconsin and Wyoming.

Tennessee Supreme Court. Eskin v. Bartee, No. W2006-01336-SC-R11-CV. August 14, 2008. Lawyers USA No. 99310620. Click here for the full text of this opinion.