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DISCUSSION

There are two potential claims that Bullock can bring against Air walk

Amusements (“AA”), a claim for loss of consortium and a claim for negligence

infliction of emotional distress. Bullock will probably prove her claim for loss of

consortium, but likely fail to prove her claim for negligent infliction of emotional

distress.

To satisfy her claim for loss of consortium Kurt’s underlying claim of

negligence must be proved, and Bullock must show that she suffered a loss of

Kurt’s society and companionship as a result of Kurt’s tortious injury. See R.I.

Gen. Laws § 9-1-41(c) (2008).

To satisfy her claim for negligent infliction of emotional distress (“NIED”)

Bullock must prove that she is closely related to Kurt, was present at the scene of

the accident and aware that Kurt was being injured, and as a result of the accident,

suffered serious emotional injury that manifest itself with physical

symptomatology. See Marchetti v. Parsons, 638 A.2d 1047, 1052 (R.I. 1994).

Only two classes of persons can recover for a claim of NIED, those that are

within the zone-of-danger, and a bystander to the accident. The zone-of-danger

approach applies to those individuals who are physically endangered by the acts of

a defendant. Simone v. The Rhode Island Co., 66 A. 202, 205 (R.I. 1907).
The bystander approach applies to those individuals who can establish an

adequate relationship between the defendant’s conduct and the plaintiff’s injury

based upon factors such as the actual witnessing of the accident and the personal

relationship existing between the bystander-plaintiff and the victim. D’Ambra v.

United States, 338 A.2d 524, 531 (R.I. 1975).

This approach was first adopted by the D’Ambra court when faced with a

mother who negligently watched her son being struck and killed by a mail truck.

Id. at 525. Under the previous zone-of-danger standard, the mother would not

have been allowed to recover for NIED because she was in no physical danger at

the time of her son’s death.

While recognizing that the mother had suffered serious emotional injury

from witnessing the death of her son, the court feared that expanding the zone-of-

danger standard would cause the legal system to be overrun with fraudulent claims.

Id. On the other hand, they were “reluctant to bar an entire class of claims with a

bright light rule for fear that occasional recovery [may] be ill-founded.” Id. at 530.

Ultimately, the court expanded the zone-of-danger standard to include bystanders

stating that when this approach is viewed as the “exception rather than the rule,”

the administrative difficulty of weeding out fraudulent claims was not impossible.

Id. at 531. Accordingly, Bullock meets the standard for bystander recovery and

can bring her claim for NIED under that theory.

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I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Bullock will prove the first element of NIED, that she has a close personal

relationship to Kurt. Rhode Island has agreed that among personal relationships

there is none closer than that of a mother and child. Id. Bullock and Kurt’s

relationship as mother and child satisfies this element of NIED.

Bullock will probably not prove that she meets the element of proximity and

awareness. In order to prove this element a party must “be present at the scene of

the accident and be aware that the victim is being injured.” Marchetti, 638 A.2d at

1050. The court has further strengthened this nexus between proximity and

awareness by requiring a “contemporaneous awareness of the causal connection

between the alleged negligence of the defendant” and the victim’s injury. Coutu v.

Tracy, No. C.A. PC/00-3720, 2006 WL 1314261, at *6 (R.I. Super. May 11, 2006).

This causal connection is most clearly demonstrated where a child was

administered Propofol over the course of four days which caused him to go into

cardiac arrest and subsequently die. The court denied the parents recovery under

NIED stating that while the parents were present the whole time, neither the

doctors nor the parents were aware that the Propofol was the cause of their child’s

demise until after his death. Id.

The court has also repeatedly denied recovery where the parent merely tends

to the injuries of the child, but does not actually witness the accident. Caparco v.

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Lambert, 402 A.2d 1180, 1181 (R.I. 1979). For example, the mother of a four-year

old whose leg was crushed by a vehicle was not allowed recovery for NIED

because she did not actually witness the accident; merely tended to the injuries

after the fact. Id. Similarly, the parents of a young girl who was stuck by a car and

spent six weeks in a coma could not recover for NIED because they were not

present at the scene of the accident and did not become aware of their daughter’s

injuries until they arrived at the hospital. Marchetti, 638 A.2d at 1048.

Like the parents in Marchetti, Bullock did not witness her son fall from the

Super Slide. While she was just one attraction away, Rhode Island law is clear that

a parent must both witness the accident and have a contemporaneous awareness

that the child is being injured at the time. Bullock meets neither of these

requirements. Even though she was in close proximity to the accident and heard

screaming, she did not actually see the accident happen and did not become aware

that her son may be injured until she heard another mother scream.

Even the shock and fright that she felt upon first seeing Kurt lying on the

ground motionless will probably not overcome the proximity and awareness

requirements of this element of NIED because she was not fully aware of extent of

Kurt’s injuries until two days later when he was diagnosed. With such a high legal

standard for recovery, it is unlikely that Bullock will be able to prove this element

of NIED.

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Bullock will prove the last element of NIED: she has suffered emotional

distress manifested by physical symptomatology. The physical symptomatology

required to prove this element of NIED can range from severe nightmares and

headaches to inability to sleep, socialize or function normally but only when those

symptoms are confirmed by a physician. Grieco v. Napolitano, 813 A.2d 994, 998

(R.I. 2003).

While some jurisdictions have abandoned the requirement of physical

symptomatology, there are two reasons why Rhode Island still requires this

standard. First, there is inherent difficulty in proving emotional distress claims

absent objective physical symptomatology. Reilly v. United States, 547 A.2d 894,

897 (R.I. 1988). Second, the court attempts to contain the source and scope of the

defendant’s liability where the defendant has not been intentionally negligent. Id.

The court further explains that since physical symptomatology is required where a

defendant’s conduct has been extreme and outrageous, public policy dictates that

where the defendant has not been intentionally negligent, the need for physical

symptomatology “applies with even greater force.” Id. at 899.

For example, the parents of a child stuck by a car that were subsequently

treated for depression, anxiety and panic attacks demonstrated sufficient physical

symptomatology to prove this element of NIED. Marchetti, 638 A.2d at 1052. In

contrast, a pregnant woman who was injured in a car accident and felt a “black

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cloud” over her until her healthy baby was delivered was not allowed recovery

under NIED, because her symptoms on their own were “insufficient to constitute

the physical symptomatology that is required.” Perotti v. Gonicberg, 877 A.2d

631, 638 (R.I. 2005).

Bullock’s severe emotional distress is sufficiently demonstrated by physical

symptoms. Like the anxiety and depression in Marchetti, Bullock’s depression and

feelings of being overwhelmed while taking care of Kurt were confirmed by a

psychiatrist. She was also prescribed Valium which she continues to take daily in

order to deal memory of the accident.

Since Bullock’s back injury was not caused by emotional distress, it is

probable that it will not further this element of her claim. Bullock’s back was

aggravated by the lifting and carrying of Kurt while he was recovering, it was not a

direct result of the accident itself. Her back injury is also not an emotional claim

with physical symptoms; it is purely a physical symptom of caring for Kurt and

does not meet the requirement of this element. Even without her back injury,

Bullock’s emotional distress alone will establish this element of NIED.

Overall, Bullock will probably not prove her claim of NIED. Even though

she can establish a close relationship to Kurt, and prove that she suffered emotional

distress accompanied by physical symptomatology, she did not actually witness the

accident which is a key requirement to prove a claim for NIED.

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II. LOSS OF CONSORTIUM

Bullock will prove her claim for loss of consortium. The success of a loss of

consortium claim is not an independent claim, but derivative in nature, and

dependent upon the success of the underlying tort claim. Sama v. Cardi Corp., 569

A.2d 432, 433 (R.I. 1990). The claimant must demonstrate through testimony and

evidence that…she incurred some sort of loss. Jameson v. Hawthorne, 635 A.2d

1167, 1172-73 (R.I.1994). The loss incurred need not manifest itself with physical

symptoms. Fritz v. May Dep't Stores Co., 866 F. Supp. 66 (D.R.I. 1994) (applying

Rhode Island state law).

For example, the parents of a three-year old burn victim who had to inflict

pain on their son in order to change his bandages, and then confine him to a stroller

at Disney World in order to keep his wounds clean were entitled to recover for loss

of consortium. Shepardson v. Consol. Med. Equip., 714 A.2d 1181, 1185 (R.I.

1998). In contrast, where a mother could not remember any of the events of her

son’s underlying injury, her complaint for loss of consortium was dismissed.

Pierce v. Rhode Island Hosp., 875 A.2d 424, 428 (R.I. 2005).

AA has already admitted fault to Kurt’s underlying claim of negligence,

therefore, Bullock’s claim is of a derivative nature. She can show that due to AA’s

negligence, she was forced to care for her son night and day, which put measurable

stress on her that still requires daily medication. During that time, she was unable

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to enjoy Kurt’s society and companionship and was forced to keep him immobile

and in the house. Therefore, Bullock can prove her claim for loss of consortium.

CONCLUSION

Based on the foregoing, Bullock will probably prove her claim for loss of

consortium; however, she will not prove her claim for NIED because she did not

physically witness the accident and have a contemporaneous awareness that Kurt

was being injured.

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