Articles Posted in Emotional Distress Cases

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation.  The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen’s" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee’s leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims.  I wrote an article on subject in an article  for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress

 

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of  another or his private  affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person.  (I guess you would never do that to a hamburger you intended to eat yourself.)    And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger?   Deputy  Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed  a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind.  He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping.  But Bylsma was smarter than that.

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court,  2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering.  Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don’t forget that Tennessee has a special act for such torts. 

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act."  It is codified at T.C.A. Section 29-26-201 et seq.  

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

Post 9 in our ongoing series of legislation of interest to tort lawyers addresses a new act that clarifies the responsibility of cemetary operators when they learn that a body has been interred in the wrong burial plot at the cemetery.  If the cemetary operator complies with the statute no damages can be awarded against the cemetery unless the cemetery acted intentionally or with malice.

Click on the link to read Public Acts, 2009 Public Chapter 365.

The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer.  The worker alleged that his work exposed him to asbestos, which caused asbestosis. He sought pain and suffering damages for fear of developing lung cancer.

The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable.  The Tennessee Court of Appeals upheld the trial judge’s refusal to give such an instruction.  The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer."  (Interesting rationale, isn’t it?  There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages.  The worse the product, the higher the standard, I guess.)

Doesn’t the gatekeeper function of the court in evaluating expert testimony already address this issue?  Not according to the Supreme Court;

The United States Supreme Court denied cert in  Flax v. DaimlerChrysler Corporation, the products liability, punitive damages, and negligent infliction of the emotional distress case decided by the Tennessee Supreme Court last year.  Here is my post from last July on the decision by the Tennessee court.

 

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