The Kentucky Supreme Court has ruled that damages for pre-impact fear cannot be recovered in a wrongful death case.
The Court said that "The proof of the fear in this case the testimony of a person at the scene of the accident that the decedent’s facial expression showed she saw the accident coming and was terrified-simply underscores the speculative nature of such harm. Mrs. Congleton’s mental distress, if any, simply was caused not by the impact she suffered, but by fear of the impact. Under the impact rule as currently applied in Kentucky, her pre-impact fear and shock cannot serve as the basis of a claim, and any damages for such a claim are not recoverable."
The case is noteworthy because it will eliminate one potential element of damages in the Comair litigation underway in Lexington. It has little relevance for Tennessee lawyers in Tennessee cases because I think our Court would reach a different result on the law. (The subject case was a little short on a factual basis for the damages.)
The Kentucky decision is Steel Technologies v. Congleton, 2005-SC-000551-DG (June 21, 2007). Read it here.
Thanks to Shannon Ragsdale at Jury Verdict Publications for telling me about the opinion.