When Can A By-stander Claim Compensation For Emotional Trauma Over An Accident?

by Gopalan on  December 28, 2009 at 4:24 PM Medico Legal News   - G J E 4
When Can A By-stander Claim Compensation For Emotional Trauma Over An Accident?
When can a by-stander claim compensation for emotional trauma over an accident? That is a question to come up before the Superior Court of San Francisco, California early next month.

The niece of a girl crushed to death by a bus two years ago is suing the city authorities. The accident took place when the two girls were returning from a trip to the store to exchange Christmas presents.

While the parents of the 15-year-old LaTrena Crosley, the girl killed, are suing the city for wrongful death, LaTrena's niece Antonisha has also filed a suit for "negligent infliction of emotional distress." She is yet to recover from the shock of witnessing the ghastly death of her close relative.

Antonisha's case would test the limits of a 1989 state Supreme Court ruling that restricted so-called bystander suits, it is felt.

In that 1989 case, the court dismissed a suit filed by a mother who rushed to the accident scene where her son  lay bleeding and unconscious after being hit by a car.

Only those who actually see the accident can sue, and, apart from "exceptional circumstances," they must be closely related to the victim - a parent, sibling, child, grandparent, spouse, or another relative living in the home, it was ruled then.

Since then, one appellate court has allowed an emotional-distress suit by a niece - a woman who looked into her uncle's casket at a San Jose cemetery and saw another man's body - but most courts have interpreted the state Supreme Court's standards strictly and narrowly, Bob Egelko, said reporting for San Francisco Chronicle. 

Such narrow, literal definitions "ignores the reality of the African American experience most common today, where the extended family becomes the primary family," attorney Christopher Dolan said in a filing to the judge who will consider the city's motion to dismiss the case.

In this case, he said, Antonisha's father, who was LaTrena's older brother, is in jail, and the girl turned to her young aunt for emotional support and mentoring. Dolan attached a sworn declaration from Stephen Small, a UC Berkeley professor of African American studies, who said the two girls' relationship was comparable to one between sisters, or even parent and child.

Inner-city African American families, "broken apart by crime, incarceration and poverty, are supplanted with slightly broader (definitions of family)," Small said, in which "generations are blurred and aunts, three years older than nieces, become like siblings/parents."

Source: Medindia

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