You leave home for a quick run to your neighborhood grocery store. Standing in the dairy section, you look for your favorite brand of milk, when suddenly, there are piercing screams that travel throughout the store followed by deafening bangs and mass panic. It may not be evident at first, but eventually it hits you that you are in the middle of an active shooter event. You may run and hide; others may freeze in terror. Regardless, everyone in that store is instantly inflicted with a trauma that will likely last for the rest of their lives; that is, if they survive the event. For those who do not survive, jurisdictions across the country differ on whether an estate is allowed to recover damages for the pre-impact terror and psychological trauma that the decedent endured in their last moments.
Jurisdictions That Have Recognized Pre-Impact Terror Is a Compensable Harm
It is not difficult to imagine the mental anguish a person may suffer in the excruciating moments after learning that the present circumstance will inevitably lead to their death. Consequently, a growing number of jurisdictions outside of Illinois have recognized that pre-impact terror and fear is a recoverable harm.
In these jurisdictions, an emerging principle provides that a decedent’s estate should recover damages if there is sufficient evidence to support a jury’s finding that the decedent suffered pre-impact terror. Courts rely on the proposition that jurors can logically link emotional distress to an act that might have caused pre-impact fear when physical evidence is unavailable. Even without physical proof of a victim’s mental state, these courts will permit the fact-finder to hear other circumstantial evidence that is available and admissible. Generally, the plaintiff must show – by a preponderance of the evidence – that the decedent had some knowledge or other basis for anticipating the disaster.
Some federal courts have interpreted New York law to permit claims for emotional trauma where the plaintiff can produce evidence from which a jury could infer that the decedent was aware of the danger and suffered from pre-impact terror. Malacynski v. McDonnell Douglas Corp., 565 F. Supp. 105 (S.D.N.Y. 1983). Other federal courts have determined that the victim does not have to suffer pre-impact terror or fear for a significant duration for pre-impact damages to be recoverable. Awards up to $10,000 were deemed not excessive by the Second and Fifth Circuits, even when the decedent’s pre-impact terror in those cases likely lasted only for a moment. Indeed, the Second Circuit affirmed a $10,000 award for mere seconds of pre-impact fear. Likewise, the Fifth Circuit affirmed an award for $10,000 for conscious pain and suffering to the estates of decedents who died in a small plane crash. Despite the aircraft and its occupants never being found, the court observed that the plaintiff’s awards were on the very low side of the spectrum.
Texas state courts have also allowed plaintiffs to recover of damages for pre-impact fright or terror. In Green v. Hale, 590 S.W.2d 231 (Tex. Civ. App. 1979), one Texas court upheld a jury verdict awarding $5,000 for the mental anguish a 13-year-old decedent suffered when the defendant negligently backed their truck over the decedent’s head, killing the decedent instantly. On appeal, the defendant argued that the jury’s award for pre-impact terror was not supported by the evidence. However, in finding the jury’s award valid, the appellate court concluded that the jury could draw a reasonable inference that the decedent experienced terror and mental anguish in their final moments. Green v. Hale, 590 S.W.2d 231, 238 (Tex. Civ. App. 1979). Another Texas court observed that “[r]egardless of how brief in duration, a tremendous amount of fear can be inferred from the surrounding circumstances, and it [is] the duty of the jury to translate that moment of mental anguish into an appropriate monetary award.” Jenkins v. Hennigan, 298 S.W.2d 905, 911 (Tex. Civ. App. 1957).
Some state supreme courts have interpreted the law flexibly to allow for recovery for pre-impact terror. The Nebraska Supreme Court found that a family could offer proof to the jury that the decedent—who was chased while on their motorcycle and intentionally hit by an automobile—suffered pre-impact fright or terror and mental anguish. Nelson v. Dolan, 434 N.W.2d 25 (1989). In Nelson, the decedent’s family proffered testimony from an accident reconstructionist, who testified that after the collision, the vehicles traveled locked together while the decedent tried to maintain control of their motorcycle. After around five seconds, the decedent was crushed by the automobile and suffered an instantaneous death. The court held that proof of the five-second period where the decedent feared their impending death could be offered to the jury, and the jury had the authority to award damages. The court held that there was no sound legal or logical distinction between: (i) permitting a decedent’s estate to recover damages for a decedent’s conscious post-injury pain, suffering, and mental anguish on one hand; and (ii) permitting that estate to recover for the conscious mental anguish resulting from the apprehension and fear of impending death.
The Illinois Approach
In contrast, Illinois courts are more rigid and typically refrain from allowing damage awards for mental distress unless a physical impact causes it. Currently, Illinois state courts have not addressed whether a plaintiff can recover damages for a decedent’s pre-impact terror. However, at least one court in the United States District Court for the Northern District of Illinois interpreted Illinois law to disallow recovery of damages for pre-impact fear. In re Air Crash Disaster Near Chicago, 507 F. Supp. 21 (N.D. Ill. 1980).
There, the court based its decision on Illinois precedent regarding mental distress. In 1974, the Illinois Supreme Court found that an action for conscious pain and suffering, medical expenses, and loss of earnings could be brought under the state’s Survival Act. Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583, 587 (1974). However, Illinois courts have disallowed claims for negligent infliction of emotional distress or mental anguish, unless the distress or anguish was caused by bodily injury. See Carlinville Nat. Bank v. Rhoads, 63 Ill. App. 3d 502, (4th Dist. 1978). In cases where physical injuries occur, courts in Illinois refuse to extend the recoverable period for pain and suffering to include the moments immediately before physical impact where a person experiences mental anguish.
The Case Against Recognizing Pre-Impact Terror as a Recoverable Harm
Opponents of pre-impact terror recovery argue that recovery in these instances should be barred because any damages are merely speculative. Since the decedent and potential witnesses may not survive impact, there is rarely any direct evidence of pre-impact fear or anguish.
Critics also contend that courts cannot fairly infer that a decedent was aware of the proximity of disaster in advance of the actual impact. If there is no evidence that the decedent was aware of the disaster, then by definition there should not be any recovery for pre-impact terror. In many cases where the decedent does not survive the impact, it is difficult—if not impossible—to obtain evidence that proves pre-impact fear actually occurred.
The Case for Recognizing Pre-Impact Terror as a Recoverable Harm
However, a fact-finder could reasonably infer that pre-impact terror occurred in the decedent’s mind. For example, if there is evidence that passengers on an airplane were aware of a fire on board, and they experienced a dramatic nosedive in altitude before a disastrous crash, the court could reasonably infer that the decedent suffered pre-impact terror. Similarly, in mass shooting events, evidence that the decedent heard shots fired nearby before being killed could be admissible to infer pre-impact fright or terror. Modern technology, science, and experts can provide an accurate reconstruction of events to assist the fact-finder in determining whether a decedent suffered pre-impact terror. After presenting this evidence at trial, it is up to the fact-finder to decide whether to award damages for pre-impact fear and in what amount. Eyewitness testimony to the decedent’s pain and suffering is not essential to recovery, and concerns about admitting speculative evidence is mitigated by judges.
Emotional distress is a legitimate medical harm worthy of compensation whether it occurs before or after impact. In wrongful death actions, the experience that caused the decedent’s death is often an experience where most people would feel some degree of hopelessness, fear, or mental anguish. Civil litigation principles mandate that the nature and amount of damages must be proven with reasonable certainty and cannot be proven through evidence which is speculative and conjectural. However, if a plaintiff can provide some common-sense, empirical, or reconstructed basis for a jury to make a reasonable inference that the decedent suffered significant conscious mental anguish pre-impact, then Illinois courts should consider relaxing their rigid approach for recovery for pre-impact terror.
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