Philibert v. Kluser
360 Or. 698
| Or. | 2016Background
- Two minor brothers (ages 8 and 12) witnessed their 7‑year‑old brother be struck and killed by a pickup truck driven negligently by defendant; the two surviving brothers were not physically injured but allege severe emotional injuries (PTSD, depression, anxiety).
- Plaintiffs sued for negligent infliction of emotional distress; defendant moved to dismiss under ORCP 21 A(8) for failure to state a claim.
- Trial court dismissed, applying the "impact rule" from Saechao v. Matsakoun; the Oregon Court of Appeals affirmed.
- Plaintiffs sought review in the Oregon Supreme Court, which granted review to decide whether bystanders who contemporaneously witness a negligently caused serious injury or death of a close family member may recover emotional‑distress damages without showing physical impact to themselves.
- The Supreme Court rejected the impact rule and the zone‑of‑danger test, adopted the Restatement (Third) of Torts § 48 approach, and reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bystanders who suffer serious emotional distress from witnessing a negligent injury/death of a close family member can recover absent physical impact | Plaintiffs: impact rule should be abandoned; adopt zone‑of‑danger or foreseeability test to allow recovery | Defendant: impact rule (Saechao) bars recovery without physical impact | Court: Plaintiffs may recover under the Restatement § 48 test; impact rule rejected |
| Which limiting test should apply to bystander recovery | Plaintiffs: zone‑of‑danger or foreseeability based rules better protect injured bystanders | Defendant: keep bright‑line impact rule to limit liability and screen claims | Court: zone‑of‑danger rejected; adopts Restatement § 48 (contemporaneous perception + close family member + serious emotional harm) |
| Whether plaintiffs alleged a legally protected interest sufficient under Norwest framework | Plaintiffs: witnessing negligent death violates a common‑law interest in not being subjected to such traumatic observation | Defendant: no independent legal source beyond foreseeability | Court: finding that interest is sufficiently important under Norwest to support recovery |
| Whether plaintiffs’ complaint met the elements of the adopted test | Plaintiffs: plead contemporaneous perception, close familial relationship, and serious emotional injury | Defendant: factual insufficiency or legal bar under impact rule | Court: complaint, taken as true, satisfies Restatement § 48 elements and survives dismissal |
Key Cases Cited
- Saechao v. Matsakoun, 78 Or App 340 (Or. Ct. App.) (adopts impact rule for bystander claims)
- Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543 (Or. 1982) (framework requiring foreseeability plus an independent legally protected interest for negligent infliction of emotional distress)
- Dillon v. Legg, 68 Cal 2d 728 (Cal. 1968) (rejected rigid impact/zone‑of‑danger limits; influential in developing bystander recovery rules)
- Thing v. La Chusa, 48 Cal 3d 644 (Cal. 1989) (discusses limits and elements for bystander recovery)
- Fazzolari v. Portland School Dist. No. 1J, 303 Or 1 (Or. 1987) (discusses foreseeability and limits on negligence liability)