Hawk Law Group | May 11, 2022 | Personal Injury
Every state allows accident victims to recover damages for emotional distress arising from a physical injury. Many states don’t allow people to recover damages from a defendant who caused them emotional distress without physical injury. Still, other states allow emotional distress damages without physical injury only when the defendant acted intentionally.
South Carolina allows emotional distress damages based on negligence without physical injury.
Kinard v. Augusta Sash Door Co. and the Five Elements of Intentional Infliction of Emotional Distress
The Supreme Court of South Carolina adopted “negligent infliction of emotional distress” as a new claim in the 1985 case of Kinard v. Augusta Sash Door Co.
The legal elements of this cause of action are:
- The defendant’s negligence must have caused death or serious physical injury to a third party. This “third party” is not the plaintiff in the action. It is someone else, not a party to the negligent infliction of emotional distress claim, whom the defendant injured or killed through negligence.
- The plaintiff must have been a bystander who was in close proximity to the accident. The plaintiff might have been, for example, a passenger in a car whose driver was killed in a car accident.
- The plaintiff and the victim must have been closely related. This means a close relative, including a spouse. It does not mean a good friend.
- The plaintiff must have seen or heard the accident at the time it happened. It is not enough that the plaintiff went unconscious but suffered severe emotional distress after hearing of the accident later.
- The plaintiff’s emotional distress must have caused physical symptoms, which must be established by expert testimony. Such symptoms might include PTSD, headaches, fatigue, weight loss, high blood pressure, or depression. The expert, most likely a doctor, must be qualified by the court.
The South Carolina Supreme Court has strictly limited damages for negligent infliction of emotional distress to third-party bystanders. No other party can receive compensation under this cause of action. Naturally, the third party who suffered physical injury can file an ordinary personal injury claim, which is a separate claim. If the third party dies, the executor of their probate estate can file a wrongful death claim.
“Proof of negligence in the air, so to speak, will not do” is the legal maxim popularized by US Supreme Court Justice Benjamin Cardozo. No matter how careless the defendant’s actions were, they must have actually caused the accident that resulted in the plaintiff’s emotional distress.
Proximate Cause and the Foreseeability Rule
Most people think of causation in “but for” terms, in the sense of “but for the defendant’s negligence, the accident (and therefore the victim’s emotional distress) would never have occurred.” Although “but for” causation is indeed a required element of intentional infliction of emotional distress, it is not enough by itself.
The causation must also be “proximate.” This means that the defendant’s acts must have been a direct enough cause of the accident, such that the accident, and the injury to the third party, was reasonably foreseeable. Accidents can happen in all sorts of strange, unforeseeable ways. Such an accident will not result in liability against the defendant. The plaintiff’s emotional distress does not have to be “foreseeable”–only the third party’s physical injury.
Contact a South Carolina Personal Injury Attorney
It isn’t always easy to prove emotional distress, and it can be even more difficult to trace emotional distress to a defendant’s negligent behavior. The most difficult task of all might be proving the amount of damages you should claim. A skilled personal injury lawyer can help you with all of these tasks and more.
Don’t worry if you cannot afford an attorney upfront. Almost any personal injury lawyer will take your case on contingency, which means that you won’t owe them a dime unless they win your case. If you do win, they will take a pre-agreed percentage of your recovery as their legal fee.
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Contact the Personal Injury Lawyers In the Central Savannah River Area at Hawk Law Group for Legal Assistance Today
For more information, please contact the Personal Injury lawyers at Hawk Law Group at our nearest location to schedule a free consultation today.
We serve throughout the Central Savannah River Area and it’s surrounding areas:
We also serve in Edgefield County, SC.