The Lawletter Vol 46 No 6

Fred Shackelford—Senior Attorney, National Legal Research Group

     In a case of first impression, New York’s highest court has expanded the scope of “bystander recovery” for the negligent infliction of emotional distress. A cause of action for negligent infliction of emotional distress compensates a witness for experiencing shock and emotional distress as a result of observing harm to another person. In many states, recovery for the negligent infliction of emotional distress is limited to persons who are in the zone of danger and who witness injury to someone who is a member of their family.

     In Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513, 2021 WL 623832 (2021), the plaintiff and her two-year-old granddaughter were in front of a building when they were struck by debris that fell from its façade. The child died the next day, and the grandmother sued various defendants for emotional distress that she experienced as a result of witnessing injury to her granddaughter.

The Lawletter Vol 46 No 5

Fred Shackelford—Senior Attorney, National Legal Research Group

     The concept of bystander liability was first recognized by American courts in the landmark California case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968). Today, most courts allow recovery under this doctrine, also known as negligent infliction of emotional distress ("NIED"). Under this theory of liability, a tortfeasor can sometimes be held liable to a bystander who experiences emotional distress from observing a direct injury to another person. Under Dillon, bystander liability was limited by foreseeability, and courts would take into account such factors as (1) whether the plaintiff was located near the scene of the accident as opposed to a distance away from it; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident rather than learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or only a distant relationship.

The Lawletter Vol 44 No 6

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a hospitalist be held liable for advising against admitting a patient to a hospital when he has no doctor-patient relationship and no direct contact with the patient? In Warren v. Dinter, 926 N.W.2d 370 (Minn. 2019), Susan Warren arrived at a health clinic with symptoms of abdominal pain, fever, and chills. A nurse practitioner (Simon) ordered tests and concluded that the patient had an infection that required hospitalization. Simon then called a local hospital to seek admission for the patient, and her call was randomly assigned to Dr. Richard Dinter, a hospitalist on call. Although the facts were disputed as to the nature of the conversation between Simon and Dr. Dinter, the Warren court accepted the nurse's account that Dr. Dinter decided that the patient did not need to be admitted to the hospital.

The Lawletter Vol 44 No 4

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a government agency be held liable in tort when a child is abused by a foster parent? The Washington Supreme Court addressed this issue of first impression in H.B.H. v. State, 429 P.3d 484 (Wash. 2018). In that case, several children were placed in foster care with a couple who abused the children physically, sexually, and psychologically over a five-year period. For a year during that period, social workers failed to conduct mandatory in-home health and safety checks, and the agency ultimately recommended that the foster parents be allowed to adopt the children. Years later, two of the children brought a tort action against the state Department of Social and Health Services (“DSHS”).

            The DSHS argued that it owed no common-law duty because the children were not in the agency's physical custody at the time the abuse occurred. Rejecting that argument, the court concluded that a detailed statutory scheme created a special relationship between the agency and the children. The custodial relationship between the DSHS and the children gives rise to a common-law duty in accordance with Restatement (Second) of Torts § 315(b). The court found that such a special relationship exists even though the DSHS did not have actual physical custody of the children.

The Lawletter Vol 43 No 8

Fred Shackelford—Senior Attorney, National Legal Research Group

            When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

            The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

The Lawletter Vol 43 No 4

Fred Shackelford, Senior Attorney, National Legal Research Group

            In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

The Lawletter Vol 42 No 10

Fred Shackelford, Senior Attorney, National Legal Research Group

            Can a plaintiff motorist's comparative fault be considered in crashworthiness cases based on strict liability or breach of warranty? That was the issue of first impression for the South Carolina Supreme Court in Donze v. General Motors, LLC, 420 S.C. 8, 800 S.E.2d 479 (2017). In Donze, the plaintiff passenger had been smoking synthetic marijuana earlier in the day. He sustained severe burn injuries when the truck in which he was riding burst into flames after colliding with another vehicle at a controlled intersection. The accident occurred because the truck driver failed to stop and pulled directly in front of the other vehicle.

            The plaintiff brought a crashworthiness case against the truck's manufacturer, alleging that the truck's design was defective because the gas tank was placed outside of the truck's frame. Two issues were certified to the Donze court:

1. Does comparative negligence in causing an accident apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff's enhanced injuries?
2. Does South Carolina's public policy bar impaired drivers from recovering damages in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty?

The Lawletter Vol 42 No 6

Fred Shackelford, Senior Attorney,National Legal Research Group

            In a case of first impression, the Indiana Supreme Court has addressed two issues that affect actions arising from injuries to plaintiffs who are in the United States unlawfully. In Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663 (Ind. 2017), an unauthorized immigrant (a Mexican citizen) was injured while working as a masonry laborer at an Indiana job site. He sued the general contractor, which argued that his immigration status should bar him from recovering damages for decreased earning capacity. The Escamilla court addressed both that issue and the admissibility of the plaintiff's status.

            As to the first issue, the court ruled that the plaintiff could recover damages for decreased earning capacity. The court relied upon the Open Courts Clause in the state's constitution, which mandates that courts shall be open and that "every person . . . shall have remedy by due course of law." Id. at 665. The court reasoned that "[w]e cannot read the Open Courts Clause's 'every person' guarantee to exclude unauthorized immigrants." Id. at 667.

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

The Lawletter Vol 41 No 10

Fred Shackelford, Senior Attorney, National Legal Research Group

      The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).