Philibert v. KluserAnnotate this Case
Plaintiffs are brothers, aged eight and twelve, were crossing a street in a crosswalk with the walk signal with their seven-year-old younger brother. Defendant negligently drove his pickup truck through the crosswalk, running over the youngest boy and narrowly missing the other two. The brother who was struck died at the scene. The two surviving brothers witnessed their brother’s death and experienced serious emotional injuries as a result. This case tasked the Oregon Supreme Court to consider the circumstances, if any, under which damages could be recovered by a bystander who suffers serious emotional distress as a result of observing the negligent physical injury of another person. The trial court dismissed the action and the Court of Appeals affirmed, both relying on the “impact rule,” which allows a plaintiff to seek damages for negligently caused emotional distress only if the plaintiff can show some physical impact to himself or herself, thus precluding the claims brought by plaintiffs in this case. The Supreme Court concluded that plaintiffs should be able to pursue their claims notwithstanding the fact that they did not themselves suffer physical injury. The Court therefore reversed the decision of the Court of Appeals and the judgment of the circuit court, and remanded the case to the trial court.