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Case Law Sausage and the “Impact Rule”

Case Law Sausage and the “Impact Rule”

The evolution of case law is a strange and slow process, mystical and even scary. For the unindoctrinated, “case law” refers to the legal principles created by judges rather than legislatures or voters. Even the term “case law” is something of a misnomer, because we do not mean “law” but rather a vast collection of examples of different case outcomes bearing the assumption that future cases of similar facts will reach similar results. We lawyers call this stare decisis or precedent.

Formation of case law goes far beyond mere precedent, because judges have historically felt compelled to explain their decisions in lengthy legal opinions designed to guide future similar cases. When those decisions cannot be explained by mere interpretations of statutes or prior precedent, judges resort to policy. For me, reading policy-based rationales is akin to consuming processed meat products: mostly satisfying but occasionally nausea-inducing.

The Oregon Supreme Court recently eased one such bout of nausea, limiting the effect of the so-called “impact rule.” Before I explain the nature of the cure, I should explain why this particular dark corner of the law gave me nausea. On a summer morning in 1983, three brothers – the youngest only two years old – left their apartment to play outside. Nearby, a teen driver with a learner’s permit was just learning to drive. The driver mistakenly backed the car up over a curb onto the sidewalk where the youngest brother rode his trike. The bumper crushed the toddler’s head against a wall, killing him instantly while the two older brothers watched. One of the older brothers also suffered minor injuries.

The Oregon Court of Appeals ruled in 1986 that only one of the older brothers could recover for the emotional trauma of seeing his younger brother’s head crushed by a car, because only one brother suffered physical injury. Saechao v. Matsakoun, 78 Or App 341 (1986).  This was the birth of the so-called “impact rule” in Oregon, requiring “that there be a direct accompanying injury to the person who suffers the emotional distress as a prerequisite to its compensability.” The Court analyzed and considered other possible rules covering this situation, most of which would have granted both brothers a right of recovery. The Court rejected those alternatives based primarily upon the clarity and ease of application of the impact rule. “The impact rule seems to us to reflect the best policy option. The line it provides is clear, and it creates a clear relationship between compensability and the plaintiff’s being a victim of a breach of duty.”

The impact rule remained in place for 30 years. Last month, the Oregon Supreme Court finally set it aside. In Philibert v. Kluser, 698 Or 79 (2016), the court considered another tragic situation where two brothers witnessed the sudden and graphic death of their younger brother. All three were under the age of 10. The impact rule would clearly have prevented the two older brothers from recovering for their emotional trauma. The Phillibert opinion analyzed the core question afresh, and decided to end that limitation.

At the outset, the Court decided that the law would recognize “a legally protected common law interest to be free from the kind of emotional distress injury” those two boys suffered. From there, like the Saechao Court, the Philibert Court analyzed the available options for defining the appropriate boundaries. Instead of the impact rule, the Court adopted  a rule allowing recovery of damages related to emotional trauma. However, the Court did not abandon all limitation. Instead, the Court limited recovery of such damages to those who witness serious physical harm to a close family member.

This whole process may raise the question of why we should have any such limitation. Why not simply allow jurors to decide when to award damages and in what amounts?  Perhaps the Urban Dictionary might have something to say about that.

Daniel T. Goldstein

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