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Business Litigation

The Impact Rule: A Bar to Negligence Liability for Purely Emotional Damages

By Heather St. Clair
Business Litigation Committee

Business Litigation Committee

Winter 2021 Newsletter

There are good reasons why the law bars grieving Kobe Bryant fans from suing the helicopter pilot for emotional distress caused by his fatal crash.  To prevent indeterminate and unlimited liability like this, most states generally bar liability for negligent conduct that causes only emotional harm.  See Restatement Third of Torts, § 47 Negligent Conduct Directly Inflicting Emotional Harm on Another.  In many jurisdictions, this rule is known as the “impact rule” and it requires some physical injury before negligence liability may attach.

As with many aspects of common law, the impact rule has jurisdictional variations, but it typically limits recovery for purely emotional harm to one of two situations.  First, where one party’s negligence places another in danger of immediate bodily harm, the negligent actor may be liable for resulting emotional harm.  Id.  This is known as the “zone of danger” rule.[1]  For instance, if a helicopter pilot fails to act reasonably, loses control of his aircraft, and puts the passengers through a harrowing near-death experience, a passenger who suffers no actual physical injury may nevertheless recover for the emotional distress caused from the danger of immediate bodily harm.  See e.g., Quill v. Trans World Airlines, Inc., 361 N.W.2d 438 (Minn. Ct. App. 1985) (affirming recovery for passenger who believed his death was imminent during plane's precipitous loss of 34,000 feet in altitude before the pilots regained control of the aircraft).

Second, a plaintiff may recover for purely emotional harm where the negligence occurs within the context of a “special” relationship, activity, or undertaking that knowingly poses a unique risk of serious emotional harm.  Id.  Ordinarily, a relationship, activity, or undertaking is only sufficiently “special” where the negligent actor assumes responsibility for protecting the emotional well-being of the plaintiff.  Id.  As the example of the Kobe fan illustrates, foreseeability alone provides an insufficient limitation for negligently-caused emotional harms, because it is not uncommon for an indeterminate class of potential litigants to foreseeably experience emotional distress without any real connection to the underlying tragedy. 

Without the impact rule, courts would flood with claims about the daily news.   In recent years, nonetheless, many decisions have expanded the types of relationships considered “special” and eroded the protections of the impact rule. 

Traditionally, for example, only the unique doctor-patient relationship involved inherent responsibility for a patient’s emotional well-being.  In Curtis v. MRI Imaging Servs. II, 327 Or. 9, 15–16, 956 P.2d 960 (1998), for instance, the Oregon Supreme Court held that medical professionals generally conduct themselves outside a “general duty to avoid any emotional harm that foreseeably might result from their conduct. In that regard, their duty is no greater than that of the population at large.”  In Curtis, the Court affirmed liability for the patient’s severe emotional distress only because the allegedly-negligent physicians should have known of the plaintiff’s history of claustrophobia when they ordered an MRI predictably exposing him to emotional harm. 

These types of admonitions, however, have not stopped injured patients from finding opportunity in the uncertainty of the fact-intensive analysis, particularly in the context of childbirth and infant care. See, e.g., Garcia v. Lawrence Hosp., 5 A.D.3d 227, 773 N.Y.S.2d 59, 60 (2004) (permitting claim for purely emotional distress against a hospital that left a baby with its sedated mother, who fell asleep and suffocated the infant); Broadnax v. Gonzalez, 2 N.Y.3d 148, 809 N.E.2d 645, 649 (2004) (rejecting impact rule to permit claim for solely emotional damages based on the stillbirth of a child); Larsen v. Banner Health Sys., 2003 WY 167, 81 P.3d 196 (Wyo. 2003) (permitting claim for emotional distress alone by a mother who discovered the hospital had switched her baby at birth and subsequently endured 43 years of her husband’s suspicion that she had committed adultery due to a lack of resemblance). 

The concept of “wrongful birth” is a good example.  A claim for wrongful birth generally arises where a medical professional negligently fails to diagnose a congenital anomaly in an unborn child or fails to deliver such a diagnosis to a pregnant patient, who later claims that she would have terminated the pregnancy absent the negligence.  See, e.g., Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 396, 415–16 (Iowa 2017); Castle v. Lester, 272 Va. 591, 636 S.E.2d 342 (2006).   Some courts have expanded the duty of care to non-patients in the realm of psychotherapy, particularly where the therapist negligently implants false memories of traumatic events such as sexual abuse.  See, e.g., Roberts v. Salmi, 308 Mich. App. 605, 621, 866 N.W.2d 460, 469 (2014) (finding a duty between a “mental health professional who employs therapies that might give rise to a false memory” and the patient’s parents because it is the parents who are “most likely to be harmed by the implantation of the false memory”); Mower v. Baird, 2018 UT 29, 422 P.3d 837, 859, as corrected (July 11, 2018) (a “duty exists to refrain from recklessly inflicting emotional distress by causing false memories or fabricated accusations of sexual abuse …”).

In contrast to the trend of expansion in malpractice cases, the impact rule continues to effectively limit negligence liability in the employment context. In most states, an employer owes a duty of care to its employees and the public in the selection, training, supervision, and retention of its employees.  Typically, the duty is defined as the use of reasonable care to discover and guard against the “dangerous propensities” of an employee, based on a “knew or should have known” standard.  Webber v. Deck, 433 F. Supp. 3d 237 (D.N.H. 2020) (“An employer has a duty to use reasonable care in hiring, training, and supervising its employees.”); Maran v. Victoria's Secret Stores, LLC, 417 F. Supp. 3d 510, 530 (D.N.J. 2019) (dismissing negligent hiring claim based on the lack of evidence that “the employe[r] either knew or should have known that the employee was violent or aggressive”).  An employer must exercise reasonable care in not only screening and training applicants but, also, where it discovers an employee’s “dangerous propensity” during employment.  These claims are known as negligent hiring or, in the latter case, negligent retention or supervision. 

Negligent hiring claims originated from physically violent crimes in the workplace, such as rape or murder.  See, e.g., Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983) (alleging employer hired a manager with a criminal record and gave him a passkey to the rape victim’s apartment).  Over time, the alleged negligent conduct has expanded to include non-physical behavior such as garden variety workplace hostility or harassment.  Many courts, however, strictly apply the impact rule to bar negligence-based harassment claims against employers for purely emotional harms.  See, e.g., Grove City Veterinary Serv., LLC v. Charter Practices Int'l, LLC, No. 3:13-CV-02276-AC, 2016 WL 8731781, at *22 (D. Or. Feb. 5, 2016), report and recommendation adopted sub nom. GROVE CITY VETERINARY SERVICE, LLC; HEATHER M. FEES, DVM; HEATHER FEES, DVM, LLC; THOMAS L. BALTZELL; & POLARIS VETERINARY SERVICE, LLC Plaintiffs, v. CHARTER PRACTICES INTERNATIONAL, LLC, Defendant., No. 3:13-CV-02276-AC, 2016 WL 8711508 (D. Or. Mar. 11, 2016) (granting summary judgment based on Oregon’s physical impact rule where plaintiff suffered no physical injury from the alleged sexual harassment); Degitz v. S. Mgmt. Servs., Inc., 996 F. Supp. 1451, 1462 (M.D. Fla. 1998) (dismissing negligent retention claim where manager’s physical touching of plaintiff caused emotional distress but no physical injury).  The reluctance of courts to permit such negligence-based harassment claims can be explained by the commonplace and chiefly economic nature of the employment relationship. See, e.g., Rathgeber v. James Hemenway, Inc., 176 Or. App. 135, 145–46, 30 P.3d 1200 (2001), aff'd, 335 Or. 404, 69 P.3d 710 (2003) (“[w]e have consistently rejected claims for emotional distress damages stemming from relationships that are fundamentally economic” including depositor-bank; patient-medical professional; client-accountant; customer-insurance agent; and client-real estate agent.).  Compare, Freeman v. Harris Cty., 183 S.W.3d 885, 890 (Tex. App. 2006) (finding negligence liability for emotional harm arising out of “contract[s] dealing with intensely emotional noncommercial subjects” such as “preparing a corpse for burial”).  Of course, the existence of anti-harassment statutes (including Title VII of the Civil Rights Act of 1964) – prohibiting, among other conduct, co-worker harassment based on a negligence standard – may also have something to do with the curtailment of negligence claims in the employment context.  These statutes afford fee-shifting to prevailing plaintiffs, and an affirmative defense to employers where the victim fails to follow policy and report the harassment or the employer takes adequate remedial measures upon notice.  Significantly, the recognition of a lower standard of fault under the common law would eviscerate this affirmative defense, endorsed by the United States Supreme Court in 1998 and well-developed under subsequent case law.  See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

No matter where you practice, the expansion of negligence claims for purely emotional harm calls for a dose of prevention and an awareness of the applicability and nuances of the impact rule.  For example, a cautious professional services provider ensures that any service agreement disclaims responsibility for harm to emotional well-being and incorporates indemnification where lawful.  Employers should screen and supervise employees with increased vigor, and consider handbook disclaimers.  Also, of course, a lawyer bringing or defending a negligence claim without physical harm must consider the impact rule as a bar to liability and assess whether an adequate statutory remedy presents an obstacle.

[1] This is separate from bystander liability, though the factual situations in which the claims arise may be similar.  In zone of danger cases, the negligent actor’s conduct poses a risk of bodily harm to the plaintiff directly.  In bystander cases, the risk of physical harm is to a third party. The majority of states have abandoned the impact rule as a defense to bystander liability.

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Heather St. Clair

Littler

Heather St. Clair is passionate about helping business owners, in-house counsel, and HR professionals solve problems that arise in the workplace. Since joining Littler in January 2019, Heather has focused her practice on cases involving negligent hiring issues, discrimination claims, and has also worked on large wage-and-hour class actions. Previously, Heather worked at a boutique litigation firm, where she handled all aspects of litigation for both plaintiffs and defendants, and the Portland City Attorney’s office, where she handled advice and litigation for various city bureaus as an Honors Attorney. Heather graduated summa cum laude from the University of Oregon in 2011, and obtained her J.D. in 2015 from the University of California, Berkeley, School of Law. Prior to college, Heather earned a Navy Achievement Medal during her six-year enlistment in the United States Navy.