Subject Matter: The Impact Rule
In a recent opinion, the Kentucky Supreme Court has ruled that the â€œimpact ruleâ€ for negligent infliction of emotional distress claims no longer applies in Kentucky: Osborne v. Keeney, 2010 SC-000397-DG (Ky. 2012).1 Under this opinion, a plaintiff does not need to show physical contact or impact to maintain a claim for negligent infliction of emotional distress.
Prior to this ruling, Kentucky followed the â€œimpact ruleâ€ with regards to claims for negligent infliction of emotional distress. The â€œimpact ruleâ€ meant that a person could not seek damages for negligent infliction of emotional distress unless a physical impact or contact had occurred. For example, a mother who watched her child struck and killed by a negligent driver but who did not come into contact with the car or any debris would not be able to recover damages for negligent infliction of emotional distress under the â€œimpact rule.â€ The advantage of the rule was that it provided a bright line test for liability: no impact, no liability.
The Kentucky Supreme Court, however, has now ruled that Kentucky will no longer apply the â€œimpact rule.â€ Under the Osborne decision, a plaintiff is not required to show physical impact or contact to seek damages for negligent infliction of emotional distress. Instead, a plaintiff must establish the basic elements of negligence – duty, breach of duty, injury, and proximate cause. Additionally, the plaintiff must present expert medical or scientific testimony of mental distress manifesting in a medical injury, that is, that the plaintiff suffered mental stress or an emotional injury that is greater than a reasonable person could be expected to endure given the circumstances.
For example, in the Osborne case, the plaintiffâ€™s home had been hit by an airplane. The plaintiff was not struck by the airplane or by any debris but an internist testified that she was in shock and that her pre-existing conditions, which included anxiety, depression and insomnia, had been aggravated and that she was emotionally unstable. Even though there was no physical contact, the court held that the Osborne plaintiff may be able to maintain a claim for negligent infliction of emotional distress.
This new ruling will affect all pending and future cases. The Kentucky Supreme Court explicitly stated that the abandonment of the â€œimpact ruleâ€ will apply retroactively to all cases that will be tried or retried after the opinion becomes final and all pending cases in which the issue has been preserved.
Firm/Company: Kentucky Supreme Court
Document Date: December 2012
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