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| As conditions require, so to speak |
This week's opinions deal with criminal conditions of release and the tort known as negligent infliction of emotional distress.
On Thursday, March 21, SCOV issued a published entry order concerning a trial-court decision striking two conditions of release in response to defendant's request to modify bail. Those conditions were that defendant be released into the custody of a responsible adult and that defendant have curfew at an approved residence. In a nutshell, defendant was charged with felony assault and battery and larceny. The State moved to hold him without bail. The trial court denied that request, but did impose the custody-of-a-responsible-adult and curfew conditions. Much later, defendant moved to modify his bail conditions, arguing that the practical effect of the conditions—because there was nobody to take him in—was unconstitutional and amounted to a hold-without-bail order, despite the court declining to hold without bail. The trial court more or less agreed on a primarily statutory basis.
The State appeals. SCOV reasons that it won't take up the constitutional arguments because the trial court's discretion was reasonably exercised under a statutory analysis. Because the trial court found that the conditions had the practical effect of holding defendant without bail, the conditions did not meet the statutory purpose of imposing the "least restrictive" conditions possible to ensure appearance in court. And there were other conditions that had the desired effect. So, SCOV affirms. State v. Champagne, 2024 VT 17 (mem.).
On Friday, SCOV decided a case involving "physical contact" in the context of a negligent-infliction-of-emotional-distress (NIED) claim. As always, there's a little more to it than that but that's the big issue in this case. NIED claims come in two flavors. One involves the "zone of danger," which means the plaintiff could have been hurt and experienced fear of harm leading to emotional distress. The other involves a physical impact from an external source. This case deals with the latter variety.
As usual, I will grossly oversimplify. Plaintiff witnessed a horrific accident in which a flagger was sucked under a truck and killed. "The flagger’s skull had been crushed and his body mutilated underneath the truck." The Court notes, however, that plaintiff was in no danger herself. She exited her vehicle to tell the driver of the truck not to get out. In the process she got blood and brain matter on her pants and shoes. Months later, she was diagnosed with PTSD from the event. She sued for NIED, negligence, and her husband joined the suit for loss of consortium. Defendants moved for summary judgment, arguing that the facts of the case did not meet the elements of the claims. The trial court agreed, reasoning that the blood and brain matter did not constitute a physical impact and thus the NIED claim failed. The trial court also reasoned that negligence requires "actual injury," as opposed to emotional injury, and that husband's loss-of-consortium claim was derivative. The trial court granted summary judgment and dismissed the case.
Plaintiffs appeal. SCOV affirms. The majority reasons that in the context of this variety of NIED, a physical impact is required and that the plaintiff got the blood and brain matter on herself. Basically, the physical impact here was not caused by defendants' negligence but plaintiff's acts. While the majority acknowledges the gruesomeness of the facts and that it is not bound by precedent, it reasons that the physical-impact requirement strikes an appropriate balance "between the need to compensate plaintiffs for genuine mental injuries and protect defendants from unforeseeable claims." In the process, the majority also rejects plaintiff's request for a "rescuer" exception to the physical-impact requirement, reasoning that there is typically a so-called "special relationship" that justifies implementing a "rescuer" exception.
The majority also reasons, like the trial court, that purely emotional injuries are not recoverable under a negligence theory without an "actual injury" (meaning a physical injury) and so the negligence claim also fails. This in turn takes care of husband's loss-of-consortium claim.
Chief Justice Reiber dissents. He reasons that the blood and brain matter are a sufficient "physical impact" and that while that contact may have been initiated by plaintiff, both that contact and her alleged injuries "were the proximate and foreseeable consequences of defendant’s negligence."
Chief Justice Reiber notes that there is no doubt plaintiff suffered a physical impact here. He points out that the physical impact need not be more than trifling. The majority's reasoning—that the physical impact here is not from an external force caused by the defendants—is just wrong. The defendants' negligent driving is precisely what caused blood and brain matter to get on plaintiff, regardless of whether she walked through it or not. In other words, were it not for defendants' negligence, it wouldn't have been there in the first place for plaintiff to walk through. He explains: "In my view, the majority imposes too strict a reading of the physical-impact rule. I would find the requirement to be met where, as here, the plaintiff has suffered a physical impact as a proximate result of the defendant’s negligence." Zeno-Ethridge v. Comcast Corp., 2024 VT 16.
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