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The “Impact Rule” has long been the standard plaintiffs must meet to recover emotional distress damages in a number of states (including Pennsylvania, with exceptions).  The Impact Rule generally holds a plaintiff may recover emotional distress damages only if he or she sustained some type of physical contact or injury.  On December 20, 2012, the Supreme Court of Kentucky rendered its decision in Keeney v. Osborne, a legal malpractice action, arising out of an underlying potential claim by a homeowner whose home had a small airplane crash into it.  Brenda Osborne, the homeowner, sued her attorney, Steven Keeney, because he did not file a claim against the pilot of the airplane, Clifford Queensberry, before the statute of limitations expired.  Ms. Osborne was in her house when Mr. Queensberry’s airplane crashed into its roof.  Ms. Osborne was not injured in any way, but alleged her pre-existing anxiety, depression, hypertension, insomnia, and diabetes were all exacerbated due to trauma resulting from the crash.

Mr. Keeney was retained within six months of the accident, but did not file an action against Mr. Queensberry within the one-year applicable statute of limitations.  Although, Mr. Kinney did eventually file a lawsuit, he did not respond to a motion for summary judgment based upon the statue limitations, and did not inform Ms. Osborne about the motion for summary judgment.  Ms. Osborne filed a legal malpractice action against Mr. Keeney.  Ms. Osbourne’s action also included claims for breach of contract and fraud and deceit.  The jury returned the verdict in her favor which included damages for loss of personal property, for pain and suffering from the airplane crash, for punitive damages against Mr. Queensberry, for legal fees paid to Mr. Keeney, for mental anguish resulting from Mr. Keeney’s representation, and $3,500,000 in punitive damages against Mr. Keeney.  The appellate court reversed the awards for emotional distress damages resulting both from the airplane crash and from Mr. Keeney’s conduct because there had been no physical impact.

The Kentucky Supreme Court found the trial court committed reversible error by improperly instructing the jury with respect to the suit-within-a-suit standard for determining legal malpractice.  The Kentucky Supreme Court reversed and remanded the matter for further proceedings.  However, the court explicitly held “a physical impact or touching is no longer required to recover for claims involving emotional distress.”  The Kentucky Supreme Court found the justifications for the impact rule were outdated, and noted that “at least forty jurisdictions have either rejected the impact rule or abandoned it.”  The Kentucky Supreme Court adopted the rule utilized in Tennessee, that recovery should be allowed only for “severe” or “serious” emotional injury.  The court defined serious or severe emotional injury as “where a reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances of the case.”  The court held a plaintiff must present medical or scientific expert evidence to support the claimed injury or impairment.  The Kentucky Supreme Court also made this rule retroactive.

Attorneys on both sides of the bar must be aware of the evolving landscape regarding emotional distress claims.  While the Kentucky Supreme Court’s opinion dismissing the physical impact rule may allow emotional injury claims in cases where they would not have previously been allowed, the requirement of expert testimony may also restrict some emotional distress claims.

-Josh J.T. Byrne, Esquire