In December, 2016, the Oregon Supreme Court recognized the tort of negligent infliction of emotional distress without a physical impact. Philibert v. Kluser, 360 OR 698 (2016). This was a change. Since 1986, Oregon law has been clear that Oregon follows the “impact” test, that required a physical impact in order to recover for emotional distress damages in common negligence situations.
The case involved two boys, aged eight and twelve, that were walking across the street in a crosswalk when their younger brother was run over and killed by a the driver of a pickup. The two boys were not struck by the vehicle and were not physically injured. But they suffered serious emotional distress as a result of witnessing the incident.
The court rejected the “impact rule” and the “zone of danger” tests which are the predominant tests that have been adopted by courts in the United States. In rejecting these tests, the court reasoned that the tests do not satisfactorily define who should be able to recover in a meaningful way. The court adopted the bystander test for recovery.
In order to recover for negligent infliction of emotional distress a person must 1) witness the event of the negligently caused serious injury or death of a person as it happens, 2) suffer serious emotional distress, and 3) be a close family member of that person. In its reasoning, the court recognized that the definition of “close family member” is subject to interpretation in today’s society. In this case, however, there was no question that the brothers would be considered “close family members”.
