Republic of Sudan, Ministry of External Affairs v. James Owens, 194 A.3d 38

Background

In 1998 al Qaeda truck bombs in Dar es Salaam and Nairobi killed and injured many; related plaintiffs sued the Republic of Sudan alleging state-sponsored terrorism and sought IIED damages for family members’ injuries.
Plaintiffs here are non-U.S. nationals claiming severe emotional distress from injury or death of immediate family members in the bombings.
Federal courts found jurisdiction under the FSIA terrorism exception, 28 U.S.C. § 1605A, but some plaintiffs could not invoke § 1605A(c)’s private cause of action and instead relied on District of Columbia tort law (IIED).
The district court awarded default judgments for IIED; Sudan later contested liability and argued that, under D.C. law and Restatement (Second) of Torts § 46(2)(a), recovery requires the plaintiff to have been present at the scene.
The D.C. Circuit certified the question whether a claimant alleging emotional distress from a terrorist attack that killed or injured a family member must have been present at the scene to state an IIED claim under D.C. law.
The D.C. Court of Appeals adopted Restatement Second § 46(2)(a) generally (presence requirement) but held the presence requirement need not apply when § 1605A jurisdictional predicates for state-sponsored terrorism are met, answering the certified question “No.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether D.C. law requires presence at the scene for IIED when distress arises from harm to an immediate family member	Plaintiffs argued they may recover for IIED based on family member’s injury/death even if not present, given the extraordinary facts	Sudan argued Restatement (Second) § 46(2)(a) requires the plaintiff to have been present at the time to recover	Court held § 46(2)(a)’s presence requirement generally governs IIED family-member claims (presence required)
Whether the presence requirement must apply when defendant is a designated state sponsor of terrorism under FSIA § 1605A	Plaintiffs argued the Restatement caveat and FSIA context justify excusing presence to allow recovery and deterrence	Sudan argued excusing presence would produce unbounded liability and depart from Restatement and limits developed by D.C. courts	Court held that when § 1605A’s jurisdictional predicates are met, the presence requirement does not apply (exception invoked)
Scope of the exception — what limits recovery absent presence	Plaintiffs sought recognition that IIED recovery remains subject to § 46 elements even if presence excused	Sudan warned floodgates and urged narrow use of caveat only in rare cases	Court limited exception: applies only where § 1605A predicates satisfied and plaintiff still must prove extreme/outrageous conduct and intentional/reckless causation of severe distress to immediate family member
Interaction with federal policy (deterrence)	Plaintiffs argued allowing recovery furthers Congress’s deterrence objectives embodied in § 1605A	Sudan argued Congress could have extended § 1605A(c) to these plaintiffs if it intended broader recovery; courts should not fill gap	Court acknowledged Congress’s deterrence aim supports exception but emphasized judicial common-law role and limited scope of exception

Key Cases Cited

Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir. 2017) (underlying appeal and source of certified question)
Sere v. Group Hospitalization, Inc., 443 A.2d 33 (D.C. 1982) (adopting Restatement Second § 46(1) approach to IIED)
Waldon v. Covington, 415 A.2d 1070 (D.C. 1980) (quoting Restatement § 46 in IIED context)
Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011) (discussing limits on emotional-distress recovery and judicially manageable rules)
Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc) (explaining "zone of danger" approach and presence-related limits)
Onsongo v. Republic of Sudan, 60 F. Supp. 3d 144 (D.D.C. 2014) (district-court liability ruling applying D.C. law to FSIA terrorism case)