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Sherwood v. Oregon Department of Transportation9/27/2000
ndant's car backed over his tricycle. Id. One of the children, Kae Fou, was also struck by the car as he tried to rescue his brother, and the other two siblings were standing on the sidewalk near the driveway but suffered no physical injuries. Id. at 343. Kae Fou sought to recover not only for his personal injuries, but also for the emotional distress from seeing his brother's death; the other two children alleged separate claims for negligent infliction of emotional distress. The trial court dismissed the other two children's claims but concluded that under the "impact rule," Kae Fou could recover for emotional distress from witnessing his brother's death. We affirmed. Id. at 348.
In so holding, we rejected the "zone of danger" rule in favor of the "impact rule." See Saechao, 78 Or App at 345-47. We described the "impact rule" as providing that:
" nly a person who suffers an impact from the same force which injures a third person may recover for emotional distress due to witnessing the injury to the third person." Id. at 343, citing W. Page Keeton et. al, Prosser and Keeton on the Law of Torts ยง 54 at 365 (5th ed 1984).
Thus, although the other two siblings, who suffered no physical injury , could not recover merely because they witnessed the fatal accident from within the "zone of danger," Kae Fou was entitled to damages for his extreme emotional trauma from seeing his brother killed. Saechao, 78 Or App at 345, 349.
We perceive no principled distinction between Kae Fou's emotional distress claim in Saechao and Nathan's claim here. Nor, contrary to ODOT's suggestion on appeal, have subsequent decisions addressing negligent infliction of emotional distress somehow implicitly qualified or repudiated Saechao. See, e.g. Hammond v. Central Lane Communications Center, 312 Or 17, 24, 815 P2d 703 (1991) (citing Saechao with approval); Heusser v. Jackson County Health Dep't, 92 Or App 156, 159-60, 757 P2d 1363 (1988), rev den 307 Or 326 (1989) (plaintiff's claim for emotional distress from defendant's negligent inoculation of her children failed to state claim under Saechao's "impact" rule). The trial court, consequently, erred in dismissing Nathan's claim for negligent infliction of emotional distress.
Reversed and remanded as to dismissal of Counts 3 and 4; otherwise affirmed.
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