Washington Bystander Negligent Infliction of Emotional Distress Claim

Under Washington law, a family member who is present at the scene of an accident in which a loved one was physically injured or arrives shortly thereafter may have a claim for negligent infliction of emotional distress (NIED).  A Washington appeals court recently reviewed a case to determine whether a plaintiff could bring an NIED claim when she knew about the accident before arriving at the scene.

The plaintiff’s husband died from injuries sustained in a motorcycle accident caused by an unknown driver. Her husband was riding motorcycles with some friends.  A van driving erratically passed them and then suddenly hit its brakes in front of the plaintiff’s husband, causing him to crash.  The van drove off, and the driver was never identified.

One of the other riders called the woman with the plaintiff and told her of the accident, saying they should come to the scene right away.  They got there shortly after the ambulance, approximately 10 to 15 minutes after they received the call.

According to the report of the ambulance attendant, the plaintiff’s husband was lying in the median, wearing a helmet that had sustained “significant damage.”  Before the plaintiff arrived, her husband had been turned over, and his helmet and shirt had been removed.  The attendants had  placed a backboard under him, but he had not been moved.

The plaintiff saw that the “motorcycle was . . . crumbled up in pieces and in parts…”  She ran over and knelt beside him.  She took his hand and spoke, but he did not respond.  She saw his damaged helmet and scrapes and blood on his head.

The ambulance attendants continued working on the defendant’s husband, and after another 10 minutes, they loaded him into the ambulance to take him to be airlifted.  The plaintiff asked to ride with them but was told she could not do so.  When her husband was loaded into the ambulance, she and her friend drove to the hospital.  They arrived about 30 minutes later, where a doctor told the plaintiff her husband had died.

The plaintiff was diagnosed with breast cancer some months before her husband’s death.  Her doctor stated that she had “suffered immense mental and physical distress” as a result of her own diagnosis and her husband’s death.

The plaintiff’s uninsured motorist policy paid the $50,000 policy limit for the death of the plaintiff’s husband but denied her bystander NIED claim on the grounds that it was not recoverable by a person who was aware of the accident before coming to the scene.

The plaintiff ultimately filed suit.  The trial court found that only someone who “unwittingly” arrives at the scene of an accident has an actionable bystander NIED claim, so the plaintiff could not recover under that theory.  She appealed.

As a general rule, to recover for bystander NIED, a plaintiff has to be present at the scene of the injury or arrive shortly afterward.  The appeals court distinguished the facts from those of a previous case in which it was held that whether the plaintiff arrived at the scene “unwittingly” was an appropriate consideration in determining if he or she had an actionable bystander NIED claim.

In this case, the plaintiff had been told her husband had been in a motorcycle accident.  She did not know what to expect.  The court also noted that she arrived just 10 or 15 minutes after the call and therefore did not have a lot of time to prepare herself for what she might see.  When she got there, she saw motorcycle parts strewn around and her husband’s almost lifeless body lying in the median.  The appeals court found that a reasonable juror could determine that she had not had sufficient time to prepare herself for what she saw.  The appeals court found the trial court erred in dismissing the plaintiff’s claim, based on the limited information she had before arriving at the scene.

The appeals court also found that the plaintiff had arrived at the scene before there was a material change in her husband’s condition or location.  He had not yet been moved but only rolled over to help him breathe.  The court also found that the removal of his helmet and shirt did not “reduce[] the visual shock…”

The trial court therefore reversed the trial court’s dismissal of the plaintiff’s claim, but it affirmed the trial court’s determination that the plaintiff was not entitled to attorney’s fees because it was a claim dispute of liability rather than a coverage dispute.

This unpublished case clarifies that a bystander NIED claim may be available to a person who knows about the accident before arriving.  The court focused on how much time the plaintiff had before seeing the victim, as well as how much information she had.

If you or a loved one has been seriously injured in an automobile accident, an experienced Washington personal injury attorney can help you evaluate your claim.  Call Blair & Kim, PLLC at (206) 622-6562 to discuss your case with one of our attorneys.

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