CBA Record November-December 2022

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

Illinois precedent regarding mental dis tress. 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 bodily injury caused the distress or anguish. Carlinville Nat. Bank v. Rhoads, 63 Ill. App. 3d 502 (4th Dist. 1978). In cases where physical injuries occur, Illi nois courts refuse to extend the recov erable period for pain and suffering to include the moments immediately before physical impact where a person experi ences mental anguish. Opposition to Recovery for Pre Impact Fear Opponents of recovery for pre-impact fear base their argument on the belief that damages are merely speculative: because the decedent and potential wit nesses 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 there should be no recovery for pre-impact fear. 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 occurred. Recognizing Pre-Impact Fear as a Recoverable Harm However, a factfinder could reasonably infer that pre-impact fear 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 alti tude before a disastrous crash, the fact finder could reasonably infer that the decedent suffered pre-impact fear. Simi larly, in mass shooting events, evidence that the decedent heard shots fired nearby

before being killed could be admissible to infer pre-impact fear. Modern technol ogy, science, and experts can provide an accurate reconstruction of events to assist the factfinder in determining whether a decedent suffered pre-impact fear. After presenting this evidence at trial, it is up to the factfinder 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 can be 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 experi ence that caused the decedent’s death is often an experience in which most people would feel some degree of hopelessness, fear, or mental anguish. Civil litigation principles mandate that the nature and number of damages must be proven with reasonable certainty and cannot be proven through speculative or conjec tural evidence. However, if a plaintiff can provide some common sense, empirical, or reconstructed basis for a jury to rea sonably infer that the decedent suffered significant, conscious mental anguish pre-impact, then Illinois courts should consider relaxing their rigid approach and allow recovery.

Some state supreme courts have inter preted the law flexibly to allow recovery for pre-impact fear. 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—suf fered pre-impact fear and mental anguish. Nelson v. Dolan, 434 N.W.2d 25 (1989). In Nelson, the decedent’s family proffered testimony from an accident reconstruc tionist who testified that after the colli sion, the vehicles traveled locked together while the decedent tried to maintain con trol 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 logi cal distinction between: (i) permitting an 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 on the other hand. 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 fear. However, at least one court in the United States District Court for the Northern District of Illinois interpreted Illinois law to dis allow 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

Karen Muñoz, a lawyer and wellness advocate, is a managing partner at Dolan Law, a boutique trial law firm, serving clients who have suffered traumatic injuries or who have been victims of crime. Dajuan L. Davis is a third-year J.D. candi date at Loyola Univer sity Chicago School of Law and a law clerk at Dolan Law.

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