When maritime injury lawsuits appear before federal judges, they usually involve some form of physical proof that someone was hurt. A deckhand on a tug suffers a bone fracture from a watertight door closing on his hand. A stewardess on a yacht tears a knee ligament tripping on a hatch cover.
In such cases, there are diagnostic imaging and surgery records showing what happened. Attorneys on each side of the fence might not necessarily agree on a dollar figure for the case. But the physical proof of injury is plain to see for everyone. It’s hard to argue with an image from an MRI or CAT scan. But what happens when the injuries are psychological in nature?
Cases involving psychological and emotional distress can be more difficult to prove. In these situations, you don’t have a doctor pointing to an x-ray in court saying, “There’s your fracture, right there. I can produce five medical journals showing that such fractures result from these types of falls.” In contrast, a lawsuit based on emotional distress can be less obvious. Instead of clear findings like torn rotator cuffs or bone fractures, emotional distress findings can sometimes seem vague in comparison.
Psychological and emotional injury can manifest itself with symptoms such as anxiety, depression, loss of appetite, loss of sleep, and an inability to focus or concentrate. These things can be documented by mental health professionals, but nonetheless, they are not often as easy to accept as an x-ray showing a bone fracture. These psychological and emotional damages can be negligently inflicted or intentionally inflicted.
When something causes emotional distress intentionally, it amounts to the tort of intentional infliction of emotional distress. The elements of this tort involve an (1) outrageous and intentional act on the part of the wrongdoer and (2) emotional distress that results from the act.
The range of conduct with intentional infliction of emotional distress can be broad. It could cover someone screaming like a drill sergeant at a poor elderly woman fumbling for change at a checkout line… to using obscene language toward an expectant mother for not moving quickly enough to make room for new passengers boarding a bus. There are additional factors that can be considered here, such as the type of victim or nature of the setting.
Emotional damages can also be inflicted negligently. Here, you’re not looking for intent on the part of the wrongdoer, only negligence. Courts can apply a (1) physical injury test or a (2) zone of danger test. With the physical injury test, a plaintiff could recover damages for emotional injury if there was some form of physical contact. The contact has to be more than just trivial.
With the zone of danger test, a plaintiff must demonstrate they were in “immediate risk of physical harm.” This means with both objective and subjective components. Another way to express it is that the plaintiff needs to be with a “zone of danger” and “fear that his life or person was in danger.”
These tests arose recently when a group of fishermen on the Gulf of Mexico responded to the 2010 Deepwater Horizon explosion and fire after they picked up distress calls. The scene that greeted them was nightmarish in terms of heat, flames, and sounds. They sued BP for negligent infliction of emotional distress, but the court ruled in favor of the oil company after analyzing the situation under these legal tests.
A fundamental difficulty with emotional distress and other types of psychological damages cases is that the yardstick to be used is not the same for everyone. Some people are hardier than others. It has nothing to do with physical strength. A petite 110-pound mate on a yacht could be every bit as mentally tough as a 220-pound roughneck on an oil rig. It often comes down to what a jury sees in terms of the person’s symptoms and whether these could be foreseeable, in light of what the person went through.
Speaking of mental anguish, these have not been easy times for our readers. The economic and emotional tolls of the pandemic continue to be hard on many people in our region and throughout the world. We wish everyone strength and hope in dealing with these adversities. Best wishes for a safe, bright, and wonderful Holiday Season! Tim, Erol