The Sky Is Falling!
Can I Sue?

                "One day, when Chicken Little
                 was scratching among the leaves,
                 an acorn fell out of a tree
                 and struck him on the head.

                `Goodness gracious me!'
                 said Chicken Little.
                `THE SKY IS FALLING!
                 I must go and tell the King.'"

                 A children's folk tale.

In   1993,  employees  at  a  Honda  Dealership  in  Santa   Ana,
California,  according  to  a recent Court  of  Appeal  decision,
"watched  a  corporate jet fall out of the sky.  They feared  the
jet would crash into them.  They feared injuries from the ensuing
explosion."   The  jet did not strike them, but  rather,  crashed
upon nearby ground.

The  corporate jet being substantially larger than an acorn,  and
in  the  absence  of  any monarchy in California,  the  employees
elected to go and tell the judge.

The  employees  thus  sued the owners and operators  of  the  jet
claiming  "mental anguish" as a result of the crash.   The  trial
court  dismissed the case and the employees appealed the decision
to the Court of Appeal.

Recourse  to  the  Court of Appeal did not prove  fruitful.   The
Court  of  Appeal  confirmed that not  every  emotional  distress
caused  by  another's negligence entitles the  injured  party  to
damages.   The Court of Appeal observed that, "No one,  saint  or
sinner,  can  go  through  life without `negligently'  inflicting
emotional  distress  on others."  To make the  point,  the  court
cites  a dissolution of marriage action and notes that "heartache
and pain are inherent in certain human relationships."

Although this may come as a surprise to some, courts occasionally
disagree  with  one  another  and  reach  diametrically   opposed
conclusions.

In  a  federal  action  entitled In Re Air  Crash  Disaster  near
Cerritos  Cal.,  "a  couple at home heard  two  loud  noises  and
suffered  severe shock and fright when two airplanes collided  in
mid-air and crashed 100 yards away."  The federal court concluded
that California law would "permit the couple to recover for their
emotional  distress  damages, albeit with  one  judge  dissenting
because  the  couple did not actually witness  the  crash."   The
federal  courts have their own procedural law, they are  required
to  follow the substantive law of the state in which the  federal
court is located.

Interestingly,  in the Honda employee case, the California  Court
of  Appeal  disagreed with the federal court's interpretation  of
California law, and observed that, "The law can hardly  permit  a
major tort suit for unpredictable emotional distress damages  for
every near-miss and otherwise uneventful unsafe lane change."

In  a  refreshingly  clear  statement  of  the  issues,  although
relegated to a footnote in the case, the Court observes:

                "Breathes  there  a soul  who  has  not
          witnessed  an accident or two over  the  past
          few  years?   Or at least had a  driver  come
          speeding   up  from  behind  and  momentarily
          worried  that  a  crash  was  imminent?   The
          bottom  line  of  our dissenting  colleague's
          analysis is that all witnesses to an accident
          who momentarily fear for their safety but who
          otherwise  escape -- indeed, those  who  fear
          for  their  safety  even  when  there  is  no
          accident but merely a close call --  may  sue
          the  wrongdoer for money as compensation  for
          emotional distress.  Wow!  If this  were  the
          law,  insurance premiums would skyrocket  and
          the  courts would groan from the sheer weight
          of   litigation.    The   ultimate   lawyers'
          paradise would have arrived:  everyone  would
          be suing everyone."

Not  only  do  the federal and state courts on occasion  disagree
with  one  another,  judges  within  the  same  court  frequently
disagree.  Thus, we have the concept of a majority opinion and  a
dissenting opinion in the same judicial decision.

In  this action, the majority, reaching into its erudite  bag  of
legal  phrases,  observes that the nature  of  a  pure  emotional
distress  claim is "loosey goosey".  The majority also cites  the
Dreamworks SKG production of "Saving Private Ryan" and notes that
"Private Ryan, the fictional embodiment of a generation of  World
War II veterans, stoically endured the death and dismemberment of
close comrades who gave their lives to rescue him, and then  went
on to live a productive life."

The  dissenting  opinion  acerbically  notes  that  the  majority
rejected the claim because of "what they label the loosey  goosey
concept   of   emotional  distress."   The   dissenting   opinion
continues:   "Actually,  my brethren are  just  unimpressed  with
`weak'  people  . . . . if they had their way, we  would  all  be
certified  war heros.  We certainly would not reward those  whose
succumb  to  fear as a result of someone else's negligence."   In
case  you  thought  that the emotion gene has been  excised  from
judicial  DNA, this dissenting comment should dispel you  of  the
thought.  Substitute your favorite epithet for "my brethren".

The moral of the story?  Not every lawsuit concludes with a happy
plaintiff!  Chicken Little was gobbled up by Foxy Loxy on the way
to  tell  the king.  Some plaintiffs are gobbled up by litigation
expense on the way to tell the judge!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1999-2002