Hypothetical: On May 21, 2011, Julius Orange and his mother were driving home in separate cars on Interstate-77 in York County, South Carolina.  Julius was following his vehicle several car lengths behind his mother’s car.  As Julius’s mother approached the intersection, a dump truck, owned and operated by Acme Landscaping Company and driven by Dog Bounty, ran a stop sign and slammed into Julius’s mother’s car.  The car rolled several times before coming to a stop on the shoulder of the road.  J’s mother was thrown from the vehicle onto the road and was killed.  Julius witnessed the collision and was the first person to come to his mother’s assistance.  Dog Bounty did not know that Julius was the decedent’s son or that she was following her mother that day.

Dog Bounty was convicted of misdemeanor death by motor vehicle and a stop sign violation, and after the accident, Julius began to suffer severe psychological problems and consulted a clinical psychologist.  He was diagnosed with a disabling mental disorder as a result of the accident.  Julius also lost his job as a result of the accident.

Julius has timely filed a lawsuit against Dog Bounty in York County, South Carolina, setting forth the foregoing facts and alleging negligent infliction of emotional distress (NIED) and mental anguish seeking compensatory damages, which he alleged were reasonably foreseeable.

Dog has filed a motion to dismiss for failure to state a claim upon which relief can be granted.  How should the court rule on Dog’s motion to dismiss Julius Orange’s complaint?

The court should deny the motion to dismiss the claim for negligent infliction of emotional distress.  The issue is whether the driver of a vehicle can be held liable for negligent infliction of emotional distress when he was not aware of the presence of the third party.

To recover for NIED, the plaintiff must establish three elements: (1) the defendant negligently engaged in conduct; (2) it was foreseeable that the conduct would cause the plaintiff emotional distress; and (3) the conduct did cause severe emotional distress.  There are several factors to consider when determining whether the emotional distress to the plaintiff is foreseeable, including the plaintiff’s proximity to the negligent act, the relationship between the plaintiff and the injured party, and whether the plaintiff personally observed the negligent act.  While knowledge of the third party’s presence is essential in intentional infliction of emotional distress (IIED) claim, this is not an element of NIED claim.

Here, Dog was negligent by driving through a stop sign without stopping and hitting and killing Julius’s mother, as evidenced by his conviction.  Considering each of the foreseeability factors separately, it is likely that Julius’s distress could be found foreseeable by a jury.  First, Julius was only a few car lengths away from the accident when it occurred, and he had a full view of the accident, so he was in close proximity to the accident.  Second, he is the son of the injured party, so there is a close family relationship.  Finally, he personally witnessed the negligent act and was the first person to come to his mother’s assistance.  Julius satisfies all three factors, making it highly likely that it was foreseeable that the conduct would cause him emotional distress.  The conduct did in fact cause him emotional distress in that he developed severe psychological problems being diagnosed with a disabling physical condition as a result.  Also, the condition caused him to lose his job.  Therefore, because all three of these elements for establishing NIED are supported by the facts, the court should not grant the motion to dismiss Julie’s complaint.

The following hypothetical properly distinguish how a South Carolina court would likely look at a negligent infliction of emotional distress claim.  The tricky inner workings of such a legal problem illustrate the methodology the law offices of Reeves, Aiken & Hightower, LLP uses to argue such a problem in front of a South Carolina court.  If you or a loved one has been injured or even killed in an accident, it is important that you know every potential claim you could have before for you.  In order to do so, you must ensure that you are properly represented.  For a consultation, contact The Law Offices of Robert J. Reeves P.C at (704) 351- 7979.  We are located in Baxter Village in beautiful Fort Mill, South Carolina.