 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guth v. Freeland7/31/2001
ed, "Hawaii 'became the first jurisdiction to allow recovery for NIED without a showing of physically manifested harm' to the plaintiff." FHP, 91 Hawaii at 473, 985 P.2d at 664 (quoting Campbell, 63 Haw. at 560, 632 P.2d at 1068) (brackets omitted). As FHP suggests, where no physical injury exists, resort is to the Rodrigues standard.
Hence, the appropriate measure for determining whether plaintiffs have alleged an actionable claim in this jurisdiction is that set forth in Rodrigues the parents, siblings, spouse, and children of the deceased and, in the absence of any such persons, those who in fact occupy an equivalent status. Cf. HRS ยง 663-3(b) (Supp. 2000) (stating that damages may be recovered for a wrongful death of a person "by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person"). The majority has adopted the foregoing formulation of "family members" and incorporated it as part of the majority opinion. However, the foregoing formulation rests on the precepts in Rodrigues.
The Christiansen rationale is to the contrary and bears no relationship to an appropriate "family members" description. In Christiansen, the California Supreme Court rejected a court of appeals decision that "close family members may recover damages for the emotional distress they suffer if remains are negligently . . . mishandled," 820 P.2d at 183, and held that "the duty is owed only to close family members who were aware that funeral and/or crematory services were being performed, and on whose behalf or for whose benefit the services were rendered." Id. (emphasis added).
Under the Christiansen formulation, a rational relationship between the interest sought to be protected -- freedom from negligent infliction of emotional distress --and those affected -- the "immediate family members who are aware of the services and for whose benefit the services are being performed," majority opinion at 21 -- is difficult to discern. TheChristiansen limiting qualification of "immediate family members" adopted by the majority, is likely to spur collateral litigation. Awareness of the funeral services as opposed to the desecration seems an irrelevant factor and the further condition that a putative plaintiff must benefit from the services performed appears contractual in nature. Both qualifications are remote from the true interest sought to be protected and potentially disqualify persons who should otherwise be entitled to recover. The appropriate "class" of plaintiffs, then, should be that defined by the principles established in Rodrigues.
Page 1 2 3 4 5 6 7 8 9 10 11 12 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|