An injury that is all in the victim's mind is increasingly being recognized as legal grounds for a damage suit.
The Illinois Supreme Court last month added its imprimatur to the growing trend by tossing out the old rule that a plaintiff had to be able to show at the very least a "physical impact" before he or she could sue a company for inflicting an injury. Earlier this year, the top courts in Minnesota, Ohio, and Missouri had jettisoned the traditional approach.
The case the Illinois jurists were considering (Rickey v. Chicago Transit) is not atypical. Aimed at the Chicago mass transit authority, it represented a bid by a young man to collect for his "emotional, psychiatric and behavioral disorders, extreme depression, prolonged and continuing mental disturbances, inability to attend school and engage in his usual and customary affairs." All those ills, the plaintiff claimed, dated back to the day when he was riding an escalator down to a subway stop with his brother, and he looked on as his brother's clothes got entangled in the mechanism. The brother's breathing was choked off for a considerable time, and he remained in a comatose condition.
The high court rejected a ruling from a mid-level appeals court that would have let others in a similar situation recover for the emotional distress flowing from merely witnessing an accident to a close relative. But it did let this suit go forward, and said that in the future Illinois would entertain such suits if the plaintiffs themselves were in a "zone of physical danger" that left them with fears that manifest themselves in a physical or emotional illness.
One of the main reasons for the old rule was a worry on the part of judges that phony claims of emotional distress can be too easily cobbled up by dishonest plaintiffs. But increasingly, legal scholars have argued that fictitious claims of whiplash or other physical injuries are fabricated just as easily, and that a trial system that expects a jury to see through the latter should give jurors credit for being able to detect the former as well.
The new decisions may open up a flood of new litigation, but the justices who decide to abandon the old rule are trying to curb that potential by making clear that--at least initially--the only cases that can succeed are those with clear evidence of severe emotional reactions to very real dangers.
The landmark Missouri ruling, for instance, came in a case brought by a woman trapped for 30 minutes in an office building elevator, who experienced such a profound anxiety reaction that she was hyperventilating when finally released and had to stay in the hospital for five days.
Accountants can be sued for negligence by investors who rely on their audit reports. Traditionally, a plaintiff had to have a contractural link to the party being sued for damages for some sort of faulty performance. But courts have dropped that requirement in product liability cases, and recently have begun to okay similar malpractice suits against lawyers who did not work for the plaintiff, but were supposed to look out for the plaintiff's interests (Washington Business, June 13).
Now the New Jersey Supreme Court has decided that the same reasoning should apply to accountants. The state justices okayed a suit by entrepreneurs who exchanged ownership of their business for stock in a company that later turned out to be motionless. If they can make their claim that they went into the deal relying on an outside audit that was seriously faulty, it will make accountants more diligent in the work in the future, the court said.