Kentucky law has long barred recovery of damages for emotional distress in personal injury suits in absence of physical impact or contact. The Kentucky Supreme Court abandoned this rule recently in Osborne v. Keeney, No. 2010-SC-397 (December 20, 2012), a legal malpractice case that involved an underlying personal injury suit arising when an airplane crashed into Brenda Osborne's home. An earlier post discussed how Kentucky uses the case-within-a-case approach in legal malpractice suits, Kentucky Legal Malpractice: The Case-Within-A-Case Approach.
A pilot, Quesenberry, experienced mechanical problems with his plane before taking off. But not long after take-off the engine lost power and the plane struck Osborne's home, slicing "through her chimney, inflict[ing] significant damage to the second story and set[ting] the house afire[.]" Osborne heard noise from the crash, ran outside to see her house afire; she was not struck by any crash debris and suffered no physical injury
Osborne had some preexisting anxiety and depression problems, which, according to her treating doctor, were exacerbated by the destruction of her home and personal property. She received treatment for what the Court described as an "extended period of time after the crash[.]" Part of her claim in her malpractice suit against her lawyer, Steven Keeney, was that she could have recovered from Quesenberry damages for the emotional distress she had suffered. Keep in mind that Osborne was not hit by any debris from the crash or physically injured due to the crash. This implicated the "physical impact" rule, long followed and long-derided in Kentucky.
The Court, after an extended discussion of precedent in Kentucky and other jurisdictions, abandoned the physical impact rule and announced the proof requirements as follows:
... the plaintiff must present evidence of the recognized elements of a common law negligence claim: (1) the defendant owed a duty of care to the plaintiff; (2) breach of that duty; (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury. ... to ensure plaintiffs' claims are genuine ... recover should be provided only for "severe" or "serious" emotional injury. A "serious" or "severe" emotional injury occurs where a reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances of the case. Distress that does not significantly affect the plaintiffs' everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment.
The Court's decision suggests a question that it does not address: must every plaintiff in every type of case present medical or scientific proof to support the claimed injury? Kentucky law has not previously imposed such a broad and burdensome rule.
Robert L. Abell