New Ninth Circuit Case – NIED & Zone of Danger Under Maritime Law -Stacy v. Danielsen

This case takes us back to the first year of law school. (I didn't go to a silk purse school, so we'll add clerking for Justice Scalia to the jobs I won't have). Under maritime law, do near-miss accidents give rise to a claim of negligent infliction of emotional distress (NIED)? A new case from the Ninth Circuit Court of Appeals says: Yes, they do. The case is Stacy v. Danielsen, 2010 U.S. App. LEXIS 13222 and the court's original opinion can be found here. The facts are straightforward. Plaintiff was on a fishing boat near San Francisco in dense fog. The boat he was on has a near miss with a freighter which subsequently collides with a different fishing vessel. Unbeknownst to the Plaintiff, a person onboard the other fishing vessel was killed. Several days later, Plaintiff discovers of the death and suffers emotional distress as a result. Plaintiff brings suit for NIED. On a defense motion to dismiss the suit for failure to state a claim, the trial court finds that because Plaintiff was not in the "zone of danger" when he suffered his psychic injury (to wit: emotional distress), he could not recover under a NIED theory. A divided Ninth Circuit reversed that decision and found that: Under this test, applicable in the maritime jurisdiction of the United States, a tort is committed by a defendant subjecting a plaintiff to emotional harm within "the zone of danger" created by the conduct of the defendant. Id. In Gottshall, the Supreme Court held that "the zone of danger" test allowed recovery for "those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Id. The Supreme Court went on to quote a law review article's exposition:"That is, 'those within the zone of danger of physical impact can recover for fright, and those outside of it cannot.'" Id. at 548 (quoting Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm, 34 U. Fla. L. Rev. 447, 489 (1982)). Finding that the Plaintiff had alleged that he was in the zone of danger and that he suffered emotional distress as a result, the majority found that he did state a claim that was cognizable under general maritime law and reversed the trial court's dismissal of his claim. The dissenting judge disagreed finding that as a matter of law, the Plaintiff was not in the zone of danger (he didn't see or hear the collision, nor did he see or hear the fatality), ergo he failed to state a claim and his suit was properly dismissed. I think a petition for rehearing en banc or a cert petition is likely on this one.

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