Can a witness to an accident (bystander) recover for emotional trauma?

By:  C. Stephen Stack, Jr.

In Entex, Inc. v. McGuire, 414 So.2d 437 (Miss.1982), the Mississippi Supreme Court set the standard for determining whether a defendant has a duty of care to a bystander plaintiff:

In determining, ... whether defendant should reasonably foresee the injury to plaintiff, or, ... whether defendant owes plaintiff a duty of care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and victim were closely related, as contrasted with an absence of any relationship or

the presence of only a distant relationship.

Id. at 444 (quoting Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968)) (emphasis added)

The Court clarified in later opinions that all three criteria must be satisfied in order for a bystander to recover. See Entergy Mississippi, Inc. v. Acey, 153 So. 3d 670, 679 (Miss. 2014) (“The Entex factors are mandatory requirements that bystander claims for emotional distress must satisfy to be accepted as valid under Mississippi law.”); Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1174–75 (Miss.2002) (holding that there are three criteria required to qualify as a bystander who is owed a duty of care, one of which is relatedness); Satchfield v. R.R. Morrison & Son, 872 So. 2d 661, 664 (Miss. 2004) (recovery not allowed where plaintiff was not related to any of the victims of the explosion he witnessed); Miss. State Fed'n of Colored Women's Club Housing for Elderly in Clinton, Inc. v. L.R., 62 So.3d 351, 359 (Miss.2010) (affirming trial court's directed verdict against mother's bystander claim for emotional distress because mother was not present on the premises of apartment complex where her eleven-year daughter was statutorily raped); Summers ex. rel. Dawson v. St. Andrew's Episcopal Sch., 759 So.2d 1203, 1210 (Miss.2000) (holding that parents of young student molested by other students on school playground were not foreseeable plaintiffs for third-party, emotional-distress recovery because the parents were not located near the scene when the events occurred).

District court decisions have held similarly applying Mississippi law. See Miles ex rel. Miles v. VT Halter Marine, Inc., 792 F.Supp.2d 919, 925–26 (E.D.La.2011) (summary judgment entered against father of worker killed in shipyard accident claiming mental distress because alleged distress suffered by father was not caused by contemporaneous observance of accident; even though father was working nearby and came upon scene shortly after accident when resuscitation efforts were underway); Moore v. Kroger Co., 800 F.Supp. 429, 433 (N.D.Miss.1992) (denied emotional-distress claims of family members of victim of motor-vehicle accident when family members did not witness accident); Campbell v. Beverly Enters., 724 F.Supp. 439, 440 (S.D.Miss.1989) (denied emotional distress claim of family members of an allegedly mistreated nursing-home patient because family members did not observe the alleged mistreatment).

However, courts in Mississippi have a drawn a distinction where a plaintiff is claiming emotional damages he experienced from a trauma in his own right as opposed to trauma related only to the witnessing of an event. For instance, in Lee v. Nat'l R.R. Passenger Corp., 791 F. Supp. 2d 550 (S.D. Miss. 2011) the plaintiff Lee was a conductor on an Amtrak train which collided with a vehicle at a crossing. Upon bringing the train to a stop, he returned to the scene of the accident and found dead bodies strewn about the area, including children. He subsequently experienced Post Traumatic Stress Disorder (PTSD) and sued Amtrak and others for his emotional distress. Id. at 551-53.

The defendants moved for summary judgment arguing that Lee couldn’t satisfy any of the Entex criteria, much less all three. Id. at 557-58. The district court denied the motion and noted that Lee was suing for the emotional distress he experienced in his own right during the accident. The Court noted that the trauma for the plaintiff began during the accident itself (“when I heard the emergency brakes going to emergency, then I knew—I knew something was—could be happening[;]” “could hear the glass flying[;]” “knew it was bad”) and did not rest on the allegation that he suffered emotional distress by viewing the physical injuries of others. Id. at 559.

Likewise, the district court in Odom v. Sorey Tire Co., 2014 WL 5392618 (S.D. Miss. 2014) denied a motion for summary judgment where the plaintiff Odom sued for, inter alia, emotional distress where a tire exploded killing a Sorey Tire Co. employee and knocking Odom to the ground. The Court noted that under Mississippi law, “[f]or purposes of foreseeability, emotional-distress plaintiffs are divided into two categories: participants and bystanders.” Id. at *2 (citing Estate of Miles v. Burcham, 127 So.3d 213, 217 (Miss.2013)). “Participants are directly involved in the causal event, and the foreseeability of their emotional-distress claims is analyzed like any other damages claim.” Id. at 217–18. It then found that there was sufficient evidence for a jury to reasonably conclude that Odom's psychological injuries were “caused by his involvement in the fatal accident and not merely by witnessing the death of the Sorey Tire employee.”) Id. at *3 (citing Estate of Miles, 127 So.3d at 218).

The crucial question, then, is whether the individual suing is truly simply a bystander or whether he is in some fashion a participant in the accident. If the former is true, all three Entex criteria must be met. If the plaintiff, although a bystander, actually sustained emotional trauma during the accident itself, those damages must be proven just as any other.