Part VII of damages in personal injury: Emotional distress and the physical consequences thereof, including being in the "zone-of-danger."
As part of our on-going discussion of damages in personal injury cases, Part VII of this blog series addresses “Emotional Distress and Physical Consequences Thereof,” which is described at New York State Pattern Jury Instruction (“P.J.I.”) 2:284. That section -- to be read to a jury when the evidence exists at a personal injury trial -- states as follows:
If you find that the plaintiff is entitled to recover from the defendant, you must also include in your verdict damages for any mental suffering, emotional and psychological injury and any physical consequences resulting from the emotional distress caused by the wrongful act of the defendant.
Why is this a separate charge? It otherwise seems to fit so nicely with the pain and suffering and loss of enjoyment of life charges, discussed in Part V of our blog series on personal injury damages, at https://www.jimsnyderlaw.com/blog/2018/11/21/what-are-damages-in-personal-injury-part-v-pain-and-suffering-and-loss-of-enjoyment-of-life, and appears to be a step-sibling of those other two. Primarily because it can only be used if there is evidence in the record that the injured party’s injury caused additional emotional or neurological sequelae (related consequences) over and above “ordinary” pain and suffering and loss of enjoyment of life damages. Kelly v. Tarnowski, 213 A.D.2d 1054 (4th Dept. 1995).
This is a damages charge, not a liability charge; such damages charge is typically made within the context of a “zone-of-danger” negligent infliction of emotional distress claim, but does not have to be. See, Comments to New York P.J.I. 2:284 and cases cited therein.
What’s the zone-of-danger? Imagine a driver or passenger enjoying a ride down the highway. The weather is nice, conversation pleasant. Their car has the right-of-way, but suddenly he or she sees an out-of-control tractor trailer coming straight at them, striking the car and causing it to flip and roll several times, severely damaging it. The person who observes the truck coming at him or her may have experienced tremendous mental and emotional trauma in addition to severe physical injuries, fearing for their own safety and anticipating a horrific result. It is hard to even visualize going through such a scene. This can cause a lifetime of unbearable flashbacks and emotional suffering for the collision survivor -- which can be compensable in an injury case.
Where such a damages claim is made, however (as it could be in a brain injury case such as our unfortunate motorcyclist in Part VI if he had survived), plaintiff must prove such emotional and related physical damages “must be serious and verifiable.” Bovsun v. Sanperi, 61 N.Y.2d 219 (1984). Further, plaintiff must produce evidence which is “sufficient to show causation and substantiality of the harm suffered, together with a ‘guarantee the genuineness’” of the damages claim. Johnson v. State, 37 N.Y.2d 378 (1975).
Where the facts suggest that this P.J.I. 2:284 “over-and-above” emotional distress damages claim can be made, it should be made, and supported with medical evidence in admissible form -- records and the testimony of treating medical doctors, which are likely readily available in very serious injury cases. People who are injured in an accident who are truly struggling mentally and emotionally with the toll of their injuries, or who have serious flashbacks, loss of sleep, depression, anxiety, etc., arising from the incident should always seek professional medical help and assistance for their difficulties.
So many of my clients over the years have battled with the enormous psychological stresses that can come from a serious injury, or the anxiety and flashbacks that come with re-living it over and over again -- and in every such instance, I tell them to get the professional help they need.
Sometimes when an injury happens, it isn’t just a broken bone, or stitches or surgery. Sometimes the injury goes much, much deeper, and “being brave” or “getting over it” without help is just not a solution.