To: Senior Attorney, Earnest

Deqy, Cheatem & Howe

From: Caroline Hecker

November 11th, 2016

RE: Potential Law Suit By Jeni Jones on the Theory of

Negligent Infliction of Emotional Distress

STATEMENT OF FACTS:
On April 2, 2009, our client—Jeni Jones—was standing on a sidewalk in downtown
College Park, next to her fiancé Victor Tamm. Then suddenly, and without warning,
Tamm was struck by a car being driven by Barney Oldfield. Jones, who was standing
only a short distance from Tamm, witnessed this accident and collapsed.

Tamm is recovering nicely from the incident. Jones, however, had to be bedridden for
several weeks and now must take tranquilizers for an acute/chronic nervous condition.
Jones seeks our counsel as to whether, under controlling Maryland case law, she can
recover from Oldfield for negligent infliction of emotional distress.

QUESTION PRESENTED:

1. Should Barney Oldfield be liable for negligent infliction of emotional distress, which
was sustained by Jeni Jones when she was standing by her fiancé, Victor Tamm, when he
was struck by Mr. Oldfield, but Mr. Oldfield did not hit her?

SHORT ANSWER

1. Under controlling Maryland case law as decided in Bowman v Williams, 164 Md. 397,
165 A. 182 (1933), Jeni Jones is likely to recover against Barney Oldfield in a claim of
negligent infliction of emotional distress. To recover, there must be a duty owed by the
defendant to the plaintiff, the duty must be breached, and an injury must occur as a result
of this breached duty. Given the facts of this case, it can be shown that a duty was owed
to Ms. Jones since Mr. Oldfield was operating a motor vehicle and under Bowman v
Williams, a driver has a duty to drive safely. This duty was breached when Mr. Oldfield
hit a person, which implies he was not exercising enough caution while driving.
Consequently, Ms. Jones sustained significant emotional distress and according to
controlling case law, these injuries do not need to be physical injuries caused as a direct
result of the negligent act.
APPLICABLE LAW:

Statutes:
There are no applicable Maryland statues controlling in this matter.

Cases:
Bowman v William, 164 Md. 397, 165 A. 182 (1933) In this case, the Court of
Appeals reaffirmed the decision made of the trial court; the plaintiff recovered for
damages against a truck driver who drove into the basement of the plaintiff’s home. The
court ruled that a driver of a vehicle owes a specific duty to other drivers and those
nearby. The injury, which arose from the plaintiff’s rational fear over the safety of his
own children given the act, was sufficient to state a claim for negligence and recover.

Green v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909) The Court of
Appeals reversed and remanded the judgment of the trial court and granted a new trial to
the plaintiff. The Court established that if a person’s injuries are caused by his or her own
fear of potential physical injuries, that person may still recover. If the fear of actual
injuries caused by the negligent act in and of itself is enough to evoke emotional distress
and nervous shock, then the actual injuries feared do not need to take place. The person
who commits negligent act causing the fear that leads to the injury is still responsible for
the injury.

Resavage v. Davis, 199 Md. 479, 86 A.2d 879 (1952) The Court of Appeals held
that anyone operating a motor vehicle does not owe a duty to spectators in a place of
safety because liability would then be extended to too many people. This case established
the rule of the “zone of danger” in which a person can only recover from negligence if he
or she sustained injuries not as direct result of being physically hurt by a negligent act,
but from feeling such emotional distress of witnessing a negligent act and fearing for
one’s own safety.

ANALYSIS:

Jeni Jones is likely to succeed against Mr. Oldfield with a claim of negligent
infliction of emotional distressed based on controlling Maryland case law. In Bowman v
Williams, 164 Md. 397, 165 A. 182 (1933), the court established that for a plaintiff to
recover, four elements must be satisfied. A duty must be owed to the plaintiff, this duty
must be breached, and the breach of this duty must result in an injury. Given the rules
here, it is very likely that our client can show that a duty was owed to her by Mr. Oldfield
and that duty was breached which caused her injuries.
When operating a motor vehicle, a person owes a specific duty not to put others in
harm. This rule is established in Bowman v. Williams. Therefore, because Mr. Oldfield
was driving a car, he is required to drive safely. He owed a duty to Ms. Jones to operate
his vehicle with caution and precision so as to not hurt other drivers or pedestrians. This
duty owed must also be breached. Mr. Oldfield violated this duty when he hit Victor
Tamm with his car, putting a bystander at harm as a result of his driving, which shows he
was not driving safely.
Negligent infliction of emotional distress requires that an element of injury and
causality of that injury from the duty breached be established. When dealing with the
element of causality, the injury does not need to be a direct result of a physical impact.
Because the fear Ms. Jones sustained is reasonable given her location to the accident, the
injury did not to be directly caused by impact of the car. This rule is established in Green
v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909). If simply the fear of being
harmed by a breach of duty owed eventually causes the harm, then injury directly caused
by the breach of duty does need to take place. Jeni Jones was not only distraught by her
fiancé being struck by the car, she also experienced fear of being potentially hit as well,
which led to further injury. Given the facts, the act would likely be seen as responsible
for causing Jones’ injury.
The requirement of injury does not need to be physical if the emotional distress is
capable of objective determination. Bowman v Williams establishes that mental and
emotional trauma as opposed to physical injury is still recognized as injury. Jeni Jones
did not develop any literal bruising or cuts or blunt trauma or any other physical signs of
harm because she was not the one directly hit by the car. However, she was bedridden for
weeks and needed tranquilizers for her nervous condition. Jeni Jones’ emotional distress
is a result of the negligent act by Mr. Oldfield and her condition qualifies as injury under
the established case law.
Under the rule established in Resavage v. Davis, 199 Md. 479, 86 A.2d 879
(1952), a person driving a car does not owe a duty to everyone. A person only owes a
duty to those in close proximity to the vehicle because only these people are at risk of
being hit. This is known as the zone of danger. Although many can experience emotional
distress from an accident, only a person in the zone of danger can recover for negligent
infliction of emotional distress. Those in close proximity to the accident are believed to
sustain enough injury to recover because of provoked personal fear of potentially being
hit. Jeni Jones was standing only a short distance away from Victor Tamm when he was
struck by the car. She is likely to have been considered in a zone of danger from being so
close. Therefore, it is likely that the court will find that Mr. Oldfield did owe a duty to her
as she suffered from emotional stress from watching the accident and from her location
giving her reasonable fear that she could have been hit.
For a client to recover for negligent infliction of emotional distress, certain
elements must be met. First, a duty must be owed to the client. As every driver owes a
duty to drive safely, Mr. Oldfield had a responsibility to drive safely. Second, this duty
must be breached. Because Mr. Oldfield hit a person with his car, it is clear he was not
exercising his duty to not put others in harm. These elements are established in Bowman
v. Williams. Third, a result of this breach, an injury must occur. Ms. Jones sustained
significant emotional distress, which qualifies as an injury under Bowman. Although this
injury was not directly caused by impact of the car or the breach of duty, Green
establishes that as long as the injury occurred because of the negligent act, the injury does
not need to be a direct result. Furthermore, Resavage says that a person driving a car does
not owe a duty to everyone. The court will find sufficient evidence that Mr. Oldfield did
owe a duty to Ms. Jones because she was close enough to the accident to be considered in
the “zone of danger.” Ms. Jones is likely to succeed based on these facts.