CBA Record November-December 2022

YOUNG L AWYERS S EC T I ON : BU I LD I NG BR I DGE S

Damage Awards for Pre-Impact Fear in Evolving Tragedies: Should Illinois Follow Suit? By Dajuan L. Davis & Karen Muño

Y ou 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 you hear piercing screams fol lowed by deafening bangs and mass panic. It may not be evident at first, but you soon realize you are in the middle of an active shooter event. Your response may be to run and hide; others may freeze in terror. Regardless, everyone in that store feels the impact of a trauma that will likely last for the rest of their lives—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 psychological trauma that the decedent endured in their last moments. JurisdictionsRecognizingPre-Impact Fear as a Compensable Harm It is not difficult to imagine the mental anguish a person may suffer in the excru ciating moments after learning that pres ent circumstance will likely lead to their death. Consequently, a growing number of jurisdictions outside of Illinois have recognized that pre-impact fear is a recov erable harm. In these jurisdictions, an emerging

principle provides that a decedent’s estate should recover damages if there is suffi cient evidence to support a jury’s finding that the decedent suffered pre-impact fear. 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 unavail able. Even without physical proof of a vic tim’s mental state, these courts will permit the factfinder 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 emo tional trauma where the plaintiff can pro duce evidence from which a jury could infer that the decedent was aware of the danger and suffered from pre-impact terror. Malacynski v. McDonnell Doug las Corp., 565 F. Supp. 105 (S.D.N.Y. 1983). Other federal courts have deter mined that the victim does not have to suffer pre-impact 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 fear in those cases likely lasted only for a moment. The Second Cir cuit affirmed a $10,000 award for mere seconds of pre-impact fear. Similarly, 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 damages for pre impact fear. In Green v. Hale, 590 S.W.2d 231 (Tex. Civ. App. 1979), one Texas court upheld a jury verdict award ing $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 fear 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. Another Texas court observed that “[r]egardless of how brief in duration, a tremendous amount of fear

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