|Fence gap in NECN coverage, Oct. 31, 2014. More from WCVB below.|
Be warned, video surveillance captured girls' screams.
Kiandra sued on two counts, first, for negligence under the Massachusetts child trespasser statute, and second, for negligent infliction of emotional distress (NIED). The court recognized that the two claims were essentially the same, because the trespasser statute provided the standard of care for the NIED, and the NIED provided the alleged injury required by the trespasser statute. According to the pleadings, Kiandra's suffering was so severe that it manifested physically, as NIED claims typically require at minimum, requiring medical treatment for "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."
Even so, NIED claims are typically disallowed in the United States. Negligence, or foreseeable accident, is regarded as too thin a reed on which to hold a defendant responsible for the merely emotional suffering of another, in the absence of physical injury. Imagine if every romantic breakup resulted in an NIED lawsuit. Whatever tort reformers or foreign observers might think, the United States isn't that lawsuit crazy.
There are exceptions, though, to the no-NIED rule. Massachusetts is among the states that have kept the door open for the occasional compelling theory of NIED, not rejecting the notion outright. And there are exceptions that are widely accepted. Courts throughout the states are willing to award NIED recoveries to plaintiffs who were in the "zone of danger" themselves, even if narrowly escaping physical injury, reasoning that the physical threat was sufficient to make emotional distress claims credible and verifiable. A smaller number of states are willing to award NIED recoveries to a narrow class of bystanders, those who contemporaneously witness physical injury inflicted on a close family member.
Kiandra's counsel tried to bring her within the bystander category by pleading the closeness of the teens' best friendship; the trial court was not moved. However, the Appeals Court held, the trial court failed to consider Kiandra's own position in the zone of danger. The girls were walking the tracks together, and just one was struck and killed. Pending further development of the facts, it looks like Kiandra was in much the same jeopardy as her friend (see the WCVB video above, but be warned, the audio tough to hear). The court sharply distinguished bystander NIED recovery from zone-of-danger recovery. In the latter case, the plaintiff is a direct victim of the defendant's negligence, not an indirect sufferer as witness, and need not prove a close family relationship. The court reversed and remanded for Kiandra to pursue her day in court.
The case is Calderon v. Royal Park, LLC, No. 18-P-1014 (Mass. App. Ct. Sept. 10, 2019). Vuono, Wolohojian, and McDonough, JJ., were on the panel.