In cases where the evidence does not support a claim for conscious pain and suffering, New Jersey plaintiff's attorneys are attempting to bring claims for “fear of impending death” or “ re-impact fright”. In essence, this claim argues that plaintiff should be compensated for “seeing his life pass before his eyes” before impact or the collision which lead to his death. As of this date, this item of damages has not been recognized in the state of New Jersey.
However, the U.S. District Court for the District of New Jersey recently addressed this issue in an unpublished opinion. Therein, the court attempted to determine how New Jersey state courts would react to such a claim. The case is In Re Jacoby Airplane Crash Litigation, D.N.J. 2006, 2006 WL 3511162 (D.N.J.).
In Jacoby, the District Court reviewed the New Jersey Survivor’s Act, N.J.S.A. 2A:15-3, which permits actions for damages “based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, in addition to damages accrued during the lifetime of the deceased.”
The District Court noted the important distinction between injuries sustained post-impact, but pre-death, which is usually conscious pain and suffering and injuries or fright sustained pre-impact. The Survivor’s Act contains no express limitation on the types of damages recoverable under the statute, leaving it open to interpretation for a claim of fear of impending death.
In an attempt to determine how a New Jersey state court would rule on such a novel issue, the District Court discussed the evolution of New Jersey case law on emotional distress claims which permit a plaintiff to recover for bodily injury or sickness resulting from fear for one’s safety caused by a negligent defendant where plaintiff was placed in danger by such negligence, absent physical impact. (See, Falzone v. Busch, 45 N.J. 559, 561 (1965). New Jersey courts have consistently adhered to the notion that fright can be the proximate cause of a substantial physical injury, but there may be difficulty in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the Falzone court found that the difficulty of proof should not bar plaintiff from attempting to convince a jury of the legitimacy of the claim.
Based on the above cases, the District Court ruled that the New Jersey Supreme Court would conclude that plaintiffs are entitled to attempt to convince a jury that they experienced pre-impact fright. To that end, the Court found that plaintiffs must present evidence that the defendant’s negligence proximately caused the “fright from a reasonable fear of immediate personal injury.”
It was noted that other jurisdictions, including New York, Maryland and Louisiana, have permitted such a claim, but most were cases of pre-impact fright experienced during an airplane crash. (See Beynon v. Montgomery Cablevision Ltd. P’ship., 351 Md. 460, 507 (1997), Haley v. Pan Am. World Airways, 746 F.2d 311 (5th Cir. 1984) (interpreting Louisiana law), Shu-Tao Lin v. McDonnell Douglas Corp., 72 F.2d 45 (2d. Cir. 1984) (interpreting New York law). However, Nebraska found it to be a viable claim in an auto accident and allowed plaintiff to seek monetary damages for the five seconds his motorcycle was locked with another moving vehicle before he was killed.
In cases where this claim may arise, it is important to consider a forensic pathologist as a defense expert. Often, forensic pathologists issue opinions on whether death was instantaneous. However, in a claim for fear of impending death, the fact of how quickly death occurred is not relevant. Instead, you should make sure your expert understands the claim and focuses his report and ultimate opinion on the plaintiff’s actions pre-impact.
For example, we are currently defending a case where this claim is being alleged. Our defense neuro-pathologist was able to conclude that decedent was looking away from our tractor trailer prior to, and at the time of, impact and therefore could not have known what was coming or that he was going to be involved in an accident which could result in his death. Our expert based his opinion on the specific injuries outlined in the autopsy report. Specifically, he found they were to one side of his body/head, and that it could only mean that decedent was turned away from our oncoming tractor trailer.
Jeffrey A. Segal is the resident CMV partner in our New Jersey office. He is admitted to practice in the state and federal courts of New Jersey and New York. Jeff is an active member of several transportation industry groups, such as the Trucking Industry Defense Association (TIDA), Transportation Lawyers Association (TLA), New Jersey Motor Truck Association (NJMTA) and the Defense Research Institute (DRI).
Nancy E. Monte Carlo is an associate in our New Jersey office. She is admitted to practice in the state courts of New Jersey and Pennsylvania as well as the U.S. District Court for the District of New Jersey. Nancy graduated from Rutgers University with a B.A. in 1998 and in 2001, she earned her law degree from Rutgers School of Law.
Jeff and Nancy can be reached at:
40 Lake Center Executive Park, Suite 200
401 Route 73 North
Marlton, NJ 08053
Fax: (856) 596-6164
Email: email@example.com &