The Aftermath of Osborne v. Keeney: The Extent of Damages Recoverable for Pre-Accident Fright

Abbie Carrico, Staff Editor[1]

In 2012, departing from decades of precedent, the Kentucky Supreme Court did away with the impact rule.[2] This rule, arguably functioning similarly to Restatement (Second) of Torts section 436A,[3] required one to prove physical harm prior to alleged emotion distress.[4] Once the rule was eliminated, Kentucky seemingly opened the door to a new category of damages:[5] pre-accident fright,[6] referred to as pre-impact fright in many jurisdictions.[7] However, since the ruling in Osborne was passed down, Kentucky’s stance on pre-accident fright has not been clearly articulated. It would seem that an award is easily attainable in survival actions where a victim can articulate his or her awareness of danger, but, in wrongful death actions, such damages are arguably inherently speculative and unnecessary.

Recovery for pre-accident fright is not a novel concept. It has frequently been addressed in aviation litigation,[8] but is also recognized as a category of damages in “more mundane situations such as automobile accidents.”[9] The ability to recover for pre-accident fright has become more acceptable generally, but is not universally accepted.[10] Many courts remain concerned that an award for pre-accident fright, like other distinct categories of pain and suffering and emotional distress, is inherently speculative under the circumstances.[11]

In Kentucky, it appears that one is more likely to recover damages for pre-accident fright in a survival action than one in a wrongful death action. This is largely because, without a victim’s testimony, there is often little to no objective evidence[12] available to determine the extent of injuries. Furthermore, it is unclear what amount of objective evidence, if any can be sufficiently provided, can prove an individual’s conscious pain prior to death.[13] In regard to Kentucky, the standard of proof can best be inferred from prior cases.

In 2007, the Kentucky Supreme Court made it seem possible that if the impact rule were eradicated, a plaintiff could recover pre-accident fright if “the victim could give a first-hand account or [a] reliable eye-witness testimony is available.”[14] Yet, the Court, reviewing the evidence available, said damages would not be appropriate in the wrongful death matter even had the rule been abandoned.[15] This was because the victim, having been killed by impact, was not available to testify, and the emergency services worker’s opinion of the “grimace on the victim’s face” was not supported by scientific or medical proof sufficient to show an emotional injury.[16] From this, it would appear that, absent the impact rule, pre-impact fright injuries will be award in wrongful death cases only where sufficient objective evidence is available.

Just of few years later, in Osborne, the court invalidated the impact rule, seemingly making it easier for plaintiffs in tort cases to receive emotional distress damages, and making it possible for one to receive additional damages for pre-accident fright.[17] However, the court did not recognize pre-accident fright specifically, nor did it abandon the rationale of the impact rule: “[E]motional distress[, without physical contact,] ‘is possibly trivial and simply too speculative and difficult to measure unless [it is] directly linked to and caused by a physical harm.’”[18] In doing this, the court maintained that even without the impact rule, emotional distress damages should not be awarded in trivial cases or when the evidence is too speculative.[19] Thus,  as predicted in Congleton, a plaintiff, regardless of the negligence claim, must sufficiently prove that an pre-accident fright created severe or serious injury, and he or she “must present expert medical or scientific proof to support the claimed injury or impairment.”[20]

Since the rational of the impact rule remains a concern in Kentucky, courts should be cautious not to award plaintiffs, especially those pursuing a wrongful death action, pre-accident fright damages where sufficient objective evidence is not provided. Doing so will only delegitimize the Kentucky courts long-standing interpretation of a plaintiff’s ability to recover emotional distress damages.[21] Additionally, awarding such damages without sufficient proof is unnecessary when there are other more natural, proximate, and foreseeable damages obtainable by a personal representative under other areas of the law.[22] Lastly, limiting the availability of pre-accident fright damages in wrongful death matters prevents a sympathetic jury who wants to “give” the survivors something from giving excessively or improperly.[23]

[1] J.D. Expected May 2019.
[2] Id.
[3] Compare Meg Ellen Phillips, A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L. J. 401 (2011) with Thomas D. Sydnor, II, Damages for a Decedent’s Pre-Impact Fear: An Element of Damages Under Alaska’s Survivorship Statute, 7 Alaska L. Rev. 351 (1990).
[4] Restatement (Second) of Torts § 436A (1965).
[5] See Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 930 (Ky. 2007) abrogated by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012) (expressing, in dictum, that if the impact rule were eradicated, a plaintiff could recover “pre-impact fright” if “the victim could give a first-hand account or [a] reliable eye-witness testimony is available”).
[6] The term “pre-accident fright” will be employed throughout this post because the terminology “pre-impact fright, fear, or terror” seems to indicate that the impact rule is still valid. Pre-accident fright “means fear, terror, and mental anguish experienced when an individual apprehends that an impending impact or injury will likely result in the death of the individual.” Sydnor, supra note 3, at 351.
[7] Beynon v. Montgomery Cablevision Ltd. P’ship, 718 A.2d 1161 (Md. 1998); Malacynski v. McDonnell Douglas Corp., 565 F. Supp. 105, 106 (S.D.N.Y 1983); Nelson v. Dolan, 434 N.W.2d 25, 32 (Neb. 1989).
[8] Sydnor, supra note 3, at 355.
[9] Id.
[10] J. Denny Shupe & Tracey Dolin Waldmann, Compensatory Damages in Aviation Litigation: How to Avoid and Reduce Speculation and Faulty Assumptions in Compensatory Damage Awards (June 24, 2009) (unpublished manuscript presented at ACI Conference).
[11] E.g., Moorhead v. Mitsubishi Aircraft Int’l, 828 F.2d 311, 313-15 (5th Cir. 1984); Fogarty v. Campbell 66 Express, Inc., 640 F. Supp. 953; Douglass v. Delta Air Lines, 709 F. Supp. 745, 765-66 (W.D. Tex. 1989), modified on other grounds, 897 F.2d 1336 (5th Cir. 1990).
[12] See Nye v. Com., Dep’t of Transp., 331 Pa. Super. 209, 216 (1984) (holding an estate may recover damages for pre-impact fright “only upon proof” that the deceased experienced physical harm as a result of her fear of impending death).
[13] See, e.g., Feldman v. Allegheny Airlines, Inc., 382 F. Supp 1271, 1301 (D. Conn. 1974); Moorhead v. Mitsubishi Aircraft Internation, Inc., 828 F.2d 278, 288 (5th Cir. Tex 1987); Shatkin v. McDonnel Douglas Corp., 727 F.2d 202, 206 (2d Cir. N.Y. 1984).
[14] Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 930 (Ky. 2007) abrogated by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012)
[15] Id.
[16] Id.
[17] Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012).
[19] Id.
[20] Id.
[21] Hetrick v. Willis, 439 S.W.2d 942, 944 (Ky. 1969) (holding that one cannot recover where no evidence of conscious pain and suffering exists)
[22] E.g., Ky. Rev. Stat. Ann. § 411.130 (2017).
[23] Michael Bersani, Pre-Death Terror Claims Can Be Worth A Lot in New York Wrongful Death Cases, Central New York Injury Lawyer Blog (Dec. 27, 2014)

*Featured image by Joshua Kimberly , licensed under CC BY-SA 4.0