Pain and Suffering: The Little Known Test For Pain and Suffering
Pain and Suffering: How to Test for Pain and Suffering After a Car Accident.
Your Introduction To Pain and Suffering When Watching a Loved One Injured.
When you?ve been involved in a car accident; the injuries to you and your loved ones are not just physical. What else are they? They are mental. The list includes anxiety, depression, anger, stress, and irritability. The list could get longer but the symptoms are relatively the same. ?These symptoms are referred to as pain and suffering. However, when that mental injury is due to the deep terror and shock of nearly dying or watching a close loved one?s injury or death. So, this is a different type of mental anguish, this is referred to as the Negligent Infliction of Emotional Distress.?
Such events can cause shock, depression, anxiety, insomnia, and a host of other physical manifestations of mental and emotional torment. Hence, the separate term, negligent infliction of emotional distress. It barely does justice to what has happened to you and your loved ones mentally but it defines an entirely separate claim that does do justice to the horror you or a family member has experienced.
Arizona Law on Pain and Suffering – When Your Pain and Anguish is Beyond an Ache.
Arizona law has long recognized that such trauma from the negligent acts of another entitles you and others in similar situations to a legal remedy. The way to recover from that injury is through a suit for the negligent infliction of emotional distress. What does that mean to your case? It means you will be compensated for the emotional struggle you have suffered. Here is how it is defined and carried out in your case.?
What’s the Difference Between Negligent and Intentional? When You Don’t Need to Prove Physical Harm to Claim Pain and Suffering.?
Suits for the Infliction of Emotional Distress come in two flavors: intentional and negligent. The difference between the two tends to lie in the nature of the act and the consequences of it. Intentional infliction of emotional distress occurs when the defendant purposely or recklessly behaves in a way that he knows or should know will cause distress. The conduct must be extreme and outrageous enough to cause emotional harm, the physical injury need not occur. Duke v. Cochise Cty., 189 Ariz. 35, 38, (Ct. App. 1996); Pankratz v. Willis, 155 Ariz. 8 (App.1987); Restatement (Second) of Torts 46 (1965).
Examples are held in these two cases. In the case of Duke, Mrs. Duke brought a wrongful death suit on behalf of her husband of 53 years Mr. Duke. Mr. Duke and Mrs. Duke were held hostage by escaped convicts from the Cochise County Jail. She saw her husband killed and she herself was held hostage for hours. She was not physically harmed but Cochise County admitted they were solely responsible for the convict’s escape and the Arizona Court upheld the award of $3,500,000.00 to Mrs. Duke for the loss of her husband and what she endured.
The Pankratz case has similar heartbreaking facts. But rather than the passing of a loved one, it involved the disappearance of a 4-year-old girl. The girl’s grandparents were found to have helped their daughter leave with her 4-year-old daughter. The father of the 4-year-old, searched relentlessly for his wife and child and was only told by the grandparents that their daughter had called and said she wouldn’t be returning home. They went on to let him believe that she would return at some point. In fact, they supported her and their granddaughter while they lived in Switzerland. Their son in law sued his ex-in-laws for their cruel behavior. Their participation and financial support of their daughter and granddaughter in Switzerland while leading the father to believe that they knew nothing was deemed by the Arizona Court as intentionally negligent behavior.
Typically, the most glaring example of intentional negligent behavior is drunk driving.
Negligent infliction of emotional distress, on the other hand, usually happens contingent to an accident. All adults are expected to exercise due care in their day to day lives so as not to put others at unreasonable risk of harm. When an individual fails to do so, due to inattentiveness, carelessness, or some other reason, they can be held liable if that action caused an injury to another.
Proving Intentional Infliction of Emotional Distress – Steps Beyond Pain and Suffering.
Intentional infliction of emotional distress requires proof of three elements in the State of Arizona:
(1) the defendant’s conduct was extreme and outrageous;
(2) the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that emotional distress will result from his conduct, and (3) severe emotional distress must indeed occur as a result of the defendant’s conduct.
Worth restating is that Arizona does not require bodily injury in order to sustain a suit for intentional infliction of emotional distress. For example, in one case a wife won a jury verdict for damages for her emotional distress after an escaped prisoner broke into her home and shot her husband in her presence. John J. Kircher, The Four Faces of Tort Law: Liability for Emotional Harm, 90 Marq. L. Rev. 789, 853 (2007).?
Another real life example, is a drunk driver, three times over the legal limit or a driver on Ambian, who hits a vehicle and leaves the scene of the accident. However, in each of these examples, the parties were in full control of their decision-making and chose to act intentionally negligent.
Proving Negligent Infliction of Emotional Distress – The Claim Beyond Pain and Suffering.
The negligent type of infliction of emotional distress is broken down to two more types?direct and indirect, also known as the Direct victim and Bystander cases, respectively.
Direct negligent infliction occurs if you’ve been in an accident and only narrowly escaped serious injury or death, you may nevertheless have resulting emotional or mental turmoil and stress.
The physical manifestations of that stress are compensable at law. Bystander negligent infliction of emotional distress comes from being in or near a similar accident, and, in the course of that accident, bearing witness to the injury or death of a close loved one. Hence, in both cases, whether the injury is to you or a loved one, you must meet several factors in order to prove your case and obtain recovery from a jury.
When You Are the Victim of Direct Negligent Infliction of Emotional Distress: How To Talk To The Jury About Your Pain and Suffering.
Arizona Courts have found that a cause of action for negligent infliction of emotional distress exists in cases where the your shock or mental anguish developed entirely from a threat to your personal security, regardless of whether you witnessing an injury to another person. Physical impact is not necessary, but the emotional distress does have to manifest physically. Quinn v. Turner, 155 Ariz. 225, 226, 745 P.2d 972, 973 (Ct. App. 1987).
The Quinn case
The Quinn case portrays a very real life example of how a mother and son can be emotionally harmed in a car accident, no matter how young the victim.
Three-year-old Courtney Quinn was standing with his mother by the side of their automobile when the at-fault driver’s car struck the Quinn automobile broadside. The point of impact was only a foot or two from where the mother and child were standing. The crash made a loud noise, and the Quinn’s car was knocked some distance and came to rest against a tree. There was no physical impact to either mother or son.
Immediately after the accident the boy would not move from the scene, and his mother described him as frozen in position. Within a week he displayed behavioral changes. He became afraid to go to the bathroom alone, feared going to school, and feared leaving his mother. He began to act out physically against his sister, ground his teeth at night, and began wetting himself before he could get to the bathroom. The boy was treated by a psychologist for his anxiety and by a dentist for his teeth grinding disorder. A decision as to dental treatment was deferred until the child grows older.
His mother sued for not only the damage to their vehicle but for you son’s emotional struggles as a result of this car accident. The Arizona Appeals Court found she had a real cause of action and she was successful in her suit.
To best portray the elements of your possible claim for direct negligent infliction of emotional harm, it may be instructive to look at the typical jury instructions a judge would give during such a case. So, in actual jury instructions, the names of the parties would be listed inside the brackets.
JURY INSTRUCTIONS OR HOW TO TALK TO THE JURY ABOUT YOUR CLAIM.
[Plaintiff] claims that [Defendant]?s negligence caused [Plaintiff] emotional distress. On this claim, [Plaintiff] has the burden of proving:
- [Defendant] was negligent;
- The [Defendant]s negligence created an unreasonable risk of bodily harm to [Plaintiff];
- [Defendant]?s negligence was a cause of emotional distress to [Plaintiff];
- [Plaintiff]?s emotional distress resulted in physical injury or illness to [Plaintiff]; and
- [Plaintiff]?s damages
Your Burden of Proof
Where the instructions say that you, as the plaintiff, have the burden of proof, it means that it is the task of your lawyer to show the jury that each of the following five items is more likely true than not. In civil crimes, the standard of that proof is known as the ?preponderance of the evidence,? which is the amount of proof sufficient to show that your version of events is the more probable explanation.
Evidence is generally presented through testimony and exhibits. Testimony may take the form of an expert, such as a psychiatrist or accident reconstructionist, or a lay person, such as a co-worker testifying regarding his observations of you. Exhibits are documents, pictures, and displays (sometimes created specifically for your case). These can take the form of copies of medical bills, pictures of the accident, e-mails, and essentially anything that might help prove your case.
Negligence – Your First Step Towards Proving Your Auto Accident Claim.
To meet the burden of proof for negligence, your attorney will use testimony and exhibits to show four things:
- A duty of care
- A breach of the duty
- That the breach caused the injuries
Most of all, there is a general duty of care imposed upon us to act with usual carefulness so as not to harm others. For instance, drivers owe a duty of care to other drivers, bikers, and pedestrians, to operate their vehicles in such a way as to not harm others. Establishments open to the public have a duty to ensure that the environment does not have hazards.
Behaving in a way that breaks the law is usually negligence per se, meaning that the law is a codification of the duty, and breaking it is a breach. The court thus typically doesn’t require your attorney to prove duty and breach where a traffic (or similar) law is broken.
Breaching a duty, is fairly self-explanatory. An individual behaved in such a way that put you or a loved one at risk of harm. If he or she had a duty not to do so, then that duty has been breached. However, your attorney must also show that the breach had an actual harmful consequence to you. This is shown through testimony and exhibits that causally link your injuries to the breach of duty. Medical bills, pictures of property damage, insurance pay outs, accident reconstructions, and similar things show that you were caused physical and financial harm.
However, damages, then, is the monetary quantification of the harm you suffered. It?s shown through evidence that you have lost things — money, time, peace of mind, enjoyment of life, companionship, etc.
Unreasonable Risk of Bodily Harm
This element is known as the ?zone of danger? requirement to sustain a finding for your claim. This is usually a question of law, meaning it is more often than not decided by the judge rather than the jury (in such cases, it is omitted from the instructions to the jury). The zone of danger rule says that you must have been placed in danger of immediate risk of physical harm, and also that you must have been frightened by the risk of harm. You could not claim negligent infliction of emotional harm, therefore, if you were fully sedated, asleep, unconscious, or otherwise unaware of the risk.
So, it’s important to note that the risk must be unreasonable. It is entirely possible to act in a way that will cause emotional distress while acting reasonably, e.g., when performing emergency medical services. Thompson on Behalf of Jessee v. Sun City Cmty. Hosp., Inc., 142 Ariz. 1, 11-12 (Ct. App. 1983).
Emotional Distress Resulting in Physical Injury/Illness
There can be no claim for damages for the fear of contracting asbestos-related diseases in the future without the manifestation of a bodily injury. See Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979).? Burns v. Jaquays Min. Corp., 156 Ariz. 375, 378 (Ct. App. 1987).
Here, a personal injury attorney will endeavor to show that you manifested physical injuries subsequent to the incident. There can be no recovery for emotional distress unless it is of such severity that ?physical harm develops as a result?.? This simply means that you and your attorney must show that you experienced the physical symptoms of your emotional turmoil. So, evidence that you are suffering from insomnia, panic attacks, depression, fright of the activity that led to the incident (such as driving in automobile accidents), anxiety, and other mental/physical ailments can be shown to prove the nature of your physical harm.
The injuries must be a long term physical illness or mental anguish, and the jury is permitted to determine what constitutes that. In Ball v. Prentice, 162 Ariz. 150, 781 (App.1989) the plaintiff was entitled to a jury determination on whether nausea, loss of sleep, headaches, and emotional problems that were connected to automobile accident constituted physical manifestations. In Quinn a three-year-old boy’s behavioral changes after an accident required treatment by psychologist for anxiety and by dentist for teeth grinding were enough to go to a jury verdict. Burns, on the other hand, decided that ?headaches, acid indigestion, weeping, muscle spasms, depression and insomnia? that some of the plaintiffs suffered were ?transitory physical phenomena? and ?not the type of bodily harm which would sustain a cause of action for emotional distress. 156 Ariz. at 379. Monaco v. HealthPartners of S. Arizona, 196 Ariz. 299, 302-03 (Ct. App. 1999).
this evidence is shown through testimony and exhibits. Experts such as psychiatrists may testify to the physical symptoms of such emotional trauma. Medical bills and prescriptions will show that you have obtained treatment for them. Your behavior before and after the accident can be described by loved ones and colleagues.
Here your attorney will sum up to the jury the costs to you because of the injuries inflicted upon you. She must show that the medical bills, prescriptions, etc. came out of the accident and your injuries. Your attorney will then ask the jury to award you those costs and any other award it deems you to deserve.
Indirect (Bystander) Negligent Infliction of Emotional Distress
So, the seminal case that created a cause of action for negligent infliction of emotional distress in Arizona is Keck v. Jackson. 122 Ariz. 114. Decided in 1979, Keck v. Jackson created the elements of the tort that still stand today. In Keck, the plaintiff, Dorothy Keck, was in a car with her mother when they were hit by the defendant?s vehicle. Both sustained injuries, and Dorothy’s mother’s injuries would prove fatal after three months of continuous hospitalization.
The Arizona Supreme Court held, for the first time, that damages for emotional distress at witnessing negligent injury to a third person are recoverable and limited. Hence, the court analyzed the findings of other courts, as well as the Restatement position.
?Restatement (Second) of Torts s 313 (1965):
Emotional Distress Unintended
(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and
(b) He realized from facts that the distress can result in illness or bodily harm.
(2) The rule stated in Subsection (1) emotional distress arising solely from harm or peril to a third person has no application to illness or bodily harm, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.
It is to be noted that, absent case law to the contrary, this Court usually follows the Restatement. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). Although not necessary to a determination of this case, we indicate an inclination to adopt the rule of the Restatement set forth above. We conclude, therefore, that damages for shock or mental anguish at witnessing an injury to a third person, occasioned by a defendant’s negligence, are recoverable.? Keck, 122 Ariz. 114, 115
A Restatement of Law is a secondary source that compiles the current law throughout the United States. Most courts in the U.S. consider them to be extremely persuasive. So, building on the Restatement position, the Keck court created three elements for recovery:
(1) witness an injury to a closely related person,
(2) suffer mental anguish manifested as physical injury, and
(3) be within the zone of danger so as to be subject to an unreasonable risk of bodily harm created by the defendant. Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269 (1989).
The jury instructions show this:
[Plaintiff] claims that [Defendant]?s negligence caused [Plaintiff] emotional distress. On this claim, [Plaintiff] has the burden of proving:
- [Name of defendant] was negligent;
- The [Name of defendant]s negligence created an unreasonable risk of bodily harm to both [Plaintiff] and [Plaintiff’s loved one];
- [Name of defendant]s negligence was a cause of bodily harm to [Plaintiff’s loved one];
- [Plaintiff’s] direct observation of the event resulting in bodily harm to [Plaintiff’s loved one]; caused [Plaintiff] to suffer emotional distress;
- The [Plaintiff’s] emotional distress resulted in physical injury or illness to [Plaintiff];
- [Plaintiff] and [Plaintiff’s loved one] had a close personal relationship; and
- [Plaintiff’s] damages.
Hence, with respect to indirect negligent infliction of emotional distress, every element of its direct sibling remains the same. However, negligent indirect infliction of emotional distress requires that, while being in the zone of danger yourself, you witnessed bodily harm come to someone with whom you have a close personal relationship.
In most states, the relationship between you and the loved one you witnessed coming to harm must be that of family. However, Arizona has not yet defined whether the nature of the relationship must be consanguineous. One Arizona court refused to allow recovery by a co-worker, but did not rule definitively on what the outer limit of liability is. Hislop v. Salt River Project Agr. Imp. & Power Dist., 197 Ariz. 553, 555, 5 P.3d 267, 269 (Ct. App. 2000). So, the Hislop Court decision essentially means that to recover under a Bystander negligent infliction claim, your relationship with the injured party must be on the level of family.
Roman v. Carroll
Another court has placed pets, as property, beyond that limit, refusing to allow recovery for a pet owner. Roman v. Carroll, 127 Ariz. 398, 399 (Ct. App. 1980). As such, you may have a claim if you are very close to the loved one you watched injured, even if you are not related, but the relationship must be such that you might as well be.
In addition to recover for indirect negligent infliction of Emotional Distress, you must also be within the zone of danger at the time of the accident. Truly, the only difference between the two claims is that the emotional disturbance and injury from it is derived from witnessing a loved one in peril and injured. All other elements are the same as above and it is important that you should prove it in the same way.
Tips for Your Negligent Infliction of Emotional Distress Claim.
Emotional distress is difficult to define and remedy. ?However, the practical effect is that you should see a counselor, a social worker, or a psychologist if you feel the mental anguish after an accident is overwhelming.
Arizona requires a physical manifestation of that distress so as to acknowledge the fact that emotional hardship of witnessing a sick one is likely to face the one way or another. The physical ailment must be from the emotional disturbance that occurred at the time of the accident, not from the stress that is subsequent to such injuries.
It has proved despite the narrow nature of the claim, with the help of a competent, experienced personal injury attorney, much like any other negligence claim. You will likely be asked to testify, as well as talk to a bevy of experts so that your injuries may be linked to either experiencing the accident or watching a loved one injured. It is vital that you carefully document and keep track of your medical treatment and symptoms. Said symptoms need not be severe, as long as they are observable.
Hence, the most important part in achieving a remedy for your harm is to locate an attorney with familiarity with such cases so that he or she may properly guide you through the case and ensure you the best chance before a judge and jury.