As noted in Part I, when defending Louisiana negligence claims, sometimes defense counsel must specifically defend against claims of mental injury. In part I, we looked at defense strategies for direct victim mental injury claims. In this article, we will examine strategies for defending the bystander rule.
Louisiana Claims of Mental Injury: Bystander Mental Injury
As noted in part I, Louisiana does not recognize a stand-alone cause of action for negligent infliction of emotional distress. See Bacas v. Falgoust, 760 So. 2d 1279 (La. App. 5th Cir. 2000) (McManus, J. concurring). There is an exception to that rule for emotional distress and trauma suffered by a close family member that witnesses an injury to a family member. This is the so-called bystander emotional distress doctrine.
The Louisiana bystander emotional distress doctrine is codified in the Civil Code at Article 2315.6. It is worthwhile to set out the statue in full to see the various defenses. Article 2315.6 states:
- The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person’s injury:
- The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.
- The father and mother of the injured person, or either of them.
- The brothers and sisters of the injured person or any of them.
- The grandfather and grandmother of the injured person, or either of them.
- To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable.
Defense Strategies: Bystander Emotional Injury
As can be seen from a full recitation of the statute, there are many built-in defenses to a bystander emotional distress claim. In defending against an Art. 2315.6 claim, these are among the several questions to explore in discovery and in the pleadings:
- Is the plaintiff a listed family member?
- Did the plaintiff “come upon the scene” at all? This seems to preclude a claim based on seeing photos of the scene
- Did the plaintiff come upon the scene of the event “shortly thereafter?” How long is too long?
- Is the claimed harm of the type a reasonable person would expect from the circumstances?
- Is the emotional injury severe? Debilitating? AND foreseeable? Note the conjunctive “and” in Art. 2315.6
As with direct emotional injuries, recovery can only be had where the emotional trauma is severe. Where the injury is not severe, no recovery will be had. See McNeely v. Ford Motor Co., Inc., 763 So. 2d 659 (La. App. 1st Cir. 1999) (daughter was likely “upset” but no evidence of severe emotional distress).
Furthermore, it can be argued that the words “severe” and “debilitating” imply the need for physical manifestation or treatment from a mental health care professional. The issues of physical manifestation and treatment-as-a-necessary-condition-for-recovery are both legal and factual issues.
Louisiana Claims of Bystander Mental Injury: Additional Potential Defenses
While Article 2315.6 does not require that the injury to the family member be “severe,” the severity of the injury is crucial nonetheless. If you watch your mother trip and fall, and it is a “normal” trip and fall, technically viewing the occurrence or “coming upon the scene” can lead to a claim for bystander emotional distress under Article 2315.6. However, the 2315.6 claim is not strong. As an example, see McNeely above. In McNeely, a daughter was present when her mother was injured trying get out of a ford vehicle that had just made a large popping sound and was steaming. The mother became entangled in the automatic seat belt and suffered injury. The daughter described her mother as “hanging in the air” and that her mother “looked real funny.” Indeed, the daughter was not frightened, but was amused until she learned that her mother was hurt. Those facts were sufficient to create a 2315.6 claim for the daughter, but such were not sufficient to recover.
In short, do not neglect to fully explore the severity of the injury that occurred to the family member.
From part I of this series and as noted above, here are other defenses to workup during discovery and in the pleadings:
- Medical records: Explore any physical manifestations, medications and diagnoses
- Need for an independent psychological/psychiatric examination
- Causation and preexisting condition defenses
- Consider obtaining medical and causation opinions
Defending Louisiana Negligence Cases: Contact an Experienced Louisiana Defense Lawyer
If you want further information about defending Louisiana negligence claims and defeating claims related to mental injuries, an experienced Louisiana insurance defense lawyer can help you.
The author may be contacted at:
Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.