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Wheatley v. Kentucky Farm Bureau Mutual Insurance Co.12/30/2004
VACATING AND REMANDING
This appeal involves the right to bring a cause of action for the negligent infliction of emotional distress in Kentucky caused by witnessing an injury (death) inflicted on another. Kentucky allows recovery if the claimant also received physical impact or contact. However, the damages for mental distress need not be directly related to the injury itself. Therefore, we vacate and remand that part of the judgment which disallowed those damages.
On June 13, 1999, Larry Wheatley was driving northbound on Vaughn Mill Road in Louisville. A vehicle driven by April Balmer, with her passenger, Christi Miller, was traveling in the southbound direction. As Balmer's vehicle approached Wheatley's vehicle, a third vehicle, driven by John Offutt, pulled out in front of Balmer's vehicle. Balmer swerved to avoid the Offutt vehicle, crossed the centerline of Vaughn Mill Road, and hit Wheatley's vehicle head-on. Balmer's vehicle landed in a creek. Wheatley managed to free himself from his automobile and went to assist those in the Balmer vehicle. Wheatley heard screaming coming from the Balmer vehicle. He went into the creek and discovered seventeen-year-old Christi Miller's badly mangled body in the passenger's seat. Wheatley held her in his arms to comfort her until EMS arrived. Wheatley and Christi were taken to the hospital. After being released from the emergency room, Wheatley went to check on Christi. Wheatley later discovered that Christi died from her injuries.
Wheatley filed suit against Balmer and Offutt seeking recovery for his medical expenses, lost wage compensation, physical and mental pain and suffering for his own injuries, and mental pain and suffering caused by witnessing Christi's fatal injuries. The complaint was later amended to add Wheatley's uninsured motorist carrier, Kentucky Farm Bureau Mutual Insurance Company (KFB). Before trial, both Offutt and Balmer settled with Wheatley. That left Wheatley's UIM claim against KFB for additional pain and suffering due to witnessing Christi's injuries. Prior to trial, both Mr. Wheatley and KFB stipulated 100% liability against Offutt as a result of the wreck.
KFB filed a motion in limine to exclude any evidence relating to Wheatley's "additional pain and suffering due to witnessing the death of a stranger." The court ultimately held that such evidence was relevant and not unfairly prejudicial, but held that because such evidence was not a direct and natural result of Wheatley's back injury , it is not a recoverable item of damage and could not be used to enhance his claim for pain and suffering arising out of his own physical injury, citing Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980). The court excluded any evidence which showed that Wheatley went to Christi's aid and also excluded evidence which showed that Wheatley suffered severe mental distress over her injuries and death.
The case proceeded to a jury trial on November 24, 2003. The jury awarded hospital and medical expenses requested by Wheatley, and the amount requested for pain and suffering related to his back injuries. Wheatley appeals, contending the trial court erred in not allowing him to show the jury he went to Christi's aid and suffered severe mental distress over her injuries and death, and for not allowing recovery for those damages.
The issue on appeal is whether the trial court erred in excluding Wheatley's claim for mental pain and suffering caused by witnessing Christi's injuries. Both sides start with the rule announced in Deutsch v. Shein, Ky., 597 S.W.2d 141, 145-46 (1980):
It is well established in this jurisdiction that "'an action will not lie for fright, shock, or mental
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