ENGL392 Closed Legal Memorandum Assignment

To: Senior Attorney, Earnest

Dewy, Cheatem & Howe

From: Darius Brown

Legal Associate

Date: April 14th, 2017

Re: Potential Law Suit by Jeni Jones on the Theory of Negligent Infliction of Emotional
Distress

The Statement of Facts:

On April 2, 2016, our clientJeni Joneswas standing on a sidewalk in downtown College
Park, next to her fianc Victor Tamm. Then suddenly, and without warning, Tamm was struck
by a car being driven by Barney Oldfield. Investigation revealed that Oldfield was texting while
driving and therefore, did not have both his hands on the wheel or his eyes on the road. Jones,
who was standing only a short distance from Tamm, collapsed when she saw that Tamm had
been run over.
Tamm is recovering nicely from the incident, and has settled his claim for minor injuries with
Oldfields insurance company. Jones, however, had to be bedridden for several weeks and now
must take tranquilizers for an acute/chronic nervous condition. Since the accident she has not
worked, nor is she able to drive a car without an emotional breakdown. Tamm has left Jones as
result of her chronic nervous condition.

Jones seeks our counsel as to whether, under controlling Maryland case law, she can recover
from Oldfield in a tortious action for negligent infliction of emotional distress.

The Question Presented:

1) Can Jeni Jones recover from Oldfield on the claim of negligent infliction of emotional distress
2) based on the fact that Jeni Jones was next to her fianc, the victim hit by Oldfield due to him
texting while driving, 3) but did not sustain any physical injury from the accident?

The Conclusion or Short Answer:

In the claim for negligent infliction of emotional distress, Jenni Jones is likely to
recover damages against Oldfield due to the controlling Maryland Case Law. In Bowman v.
Williams, 164 Md. 397, 165 A. 182 (1933), the courts decision provides the controlling law and
a two-prong test for negligence. Stating that the plaintiff must prove there is a duty owed to
individuals in the area near the road and that the duty was breach. The duty owed is to operate
the vehicle in a way that no injury is inflicted to other users of the roads and to individuals in
areas near the roads in order to prove that a duty was owed to a third-party plaintiff, Jones must
prove that she was within proximity of the accident placing her in the zone of danger. Overall,
Jones will be able to prove that a duty was owed to her and that Oldfields breached that duty to
her. Overall Jones will succeed in recovering damages.

The Applicable Law:

Statutes:
There are no applicable Maryland statutes for a claim of negligent infliction of emotional
distress. Controlling case law on this issue is as follows:
Cases:
Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933). In this case, the court affirmed
that immense fright or fear of injury of others resulting in physical injury is sufficient to recover
damages.
Green v. T. A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909). In this case, the court
ruled that the contractors were liable for the distress they caused, due to the exception to the rule
that in the absence of physical impact resulting in injury, mental and emotional injuries are not
compensable unless there is objective mental injury.
Resavage v. Davis, 199 Md. 479, 86 A.2d 879 (1952). In this case, the court affirmed the
lower courts decision based on the ruling that the operator of a vehicle was not liable for
spectators in a position of safety off the highway for visible shock to them.

The Analysis:
In the claim for negligent infliction of emotional distress, Jenni Jones is likely to recover
damages against Oldfield due to the controlling Maryland Case Law. In Bowman v. Williams,
164 Md. 397, 165 A. 182 (1933), the courts decision provides the controlling law and a two-
prong test for negligence. Stating that the plaintiff must prove there is a duty owed to individuals
in the area near the road and that the duty was breach. The duty owed is to operate the vehicle in
a way that no injury is inflicted to other users of the roads or to pedestrians in areas near the
roads. In order to prove that a duty was owed to a third-party plaintiff, Jones must prove that she
was within proximity of the accident placing her in the zone of danger. In this case, it is likely
that proximity will be found as stated in the facts where Jones was in relation to the victim when
he was hit and relevant case law extending negligence to her.

In regards to the first prong of a duty owed Oldfield owed a duty to Ms. Jones. In Bowman,
the driver has the right to drive on the highway, but, at the same time owes the duty of operating
the vehicle with reasonable care and caution, in order to not inflict injury to other highway users
and those pedestrians in the near areas. The accident involving Jones fianc being hit by
Oldfield within a short distance of her, constitutes as injury as the court similarly found in
Bowman. In Bowman, a truck speeding in icy conditions ran off the road and crashed into the
foundation of Bowmans home where his kids were while he was upstairs. Bowman sustained
no physical injury but the fright and concern for his children downstairs lead to a nervous
disorder that prevented him from working. The courts found that injury in any form that as a
result of the defendants negligent acts allows for a recovery of damages whether the fear is for
ones own safety or safety of another. This allowing Bowman to recover damages. The
similarities between the Bowman case and this case would likely generate the same results.

In testing for a duty owed, we test whether the plaintiff was within the proximity of the
defendants harm. In Bowman, the truck crashed into the foundation of Bowman homes, while
he was upstairs in the house. Bowman was not in the direct line the crashing truck, but his
children were. The third-party negligence claim and Bowmans relative location to the initial
crash site places him within the proximity of the crash site to sustain non-physical injury. Here,
Jones, as stated in facts, was described as being next to the victim as well as being a short
distance from the victim. This places Jones within the proximity of danger. Similar to Bowman
it is likely that Jones negligence claim will succeed.

If the court looks at the facts of the Bowman and argue otherwise, relying on Resavage v. Davis,
199 Md. 479, 86 A.2d 879 (1952) to argue that the plaintiff wasnt close enough to the victim to
be within the zone of danger. Jones is still able to recover for damages due to the courts findings
in Green v. T. A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909). In shoemaker, the court
found that the wrongdoer is liable for all injuries if the injury is the result of their wrongful act,
despite the foreseeability of it. Here, Oldfields wrongful act constitutes as hitting the plaintiffs
once fianc which resulted in the plaintiffs subsequent nervous injuries, making Oldfield liable.
In conclusion, the court will find negligence by Oldfield and grant Jones recovery of damages.