Ninth Circuit Court of Appeals Allows Fisherman's Claim for Negligent Infliction of Emotional Distress

In a recent decision from the United States Court of Appeals for the Ninth Circuit, the Court—over a strong dissent by Circuit Judge Hall—ruled that a fisherman who had been endangered (but not physically injured) by the negligence of a freighter had a cause of action against the owners and operators of the freighter for negligent infliction of emotional distress. Stacy v. Rederiet Otto Danielsen, A.S., No. 09-15579 (9th Cir. June 29, 2010).

The plaintiff-appellant in Stacy, the owner and operator of the fishing vessel the Marja, had been fishing for salmon in dense fog off of Point Reyes, California when his vessel's radar detected the Eva Danielsen, a freighter owned and operated by defendant-appellees, one (1) mile away on a collision course towards the Marja. The collision was avoided and, although the Plaintiff, Mr. Stacy, was unable to see the Eva Danielsen as it passed, it came close enough for Stacy to hear her engine and machinery and feel the vessel's wake. Shortly thereafter, the freighter collided with another fishing vessel, resulting in the death of her captain. Stacy filed suit against the owners and operators of the Eva Danielsen for the negligent infliction of emotional distress, alleging that the vessel was proceeding at an unsafe speed without a proper lookout, proper radar equipment or proper signals, putting him in grave and imminent risk of death or great bodily harm.

The defendant-appellees moved to dismiss the complaint on the basis that Stacy had failed to state a cause of action. The District Court granted the defendants' motion, finding that in order for Stacy to have been within the "zone of danger" entitling him to recover without physical injury to himself, his claim had to have been premised on having experienced a psychic injury by witnessing another being seriously injured or killed, while simultaneously being threatened with physical injury to himself. Stacy appealed from this ruling.

In reversing the District Court's decision, the Ninth Circuit looked to the U.S. Supreme Court's decision in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-48 (1994), with set forth the federal standard for negligent infliction of emotional distress. In Gottshall, the Supreme Court held that under maritime law, a plaintiff can recover for a defendant's negligent infliction of emotional harm if the plaintiff is within "the zone of danger" created by the defendant's conduct. The Supreme Court held that "the zone of danger" test allowed recovery for "those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Id. (emphasis added).  Applying the Gottshall test, the Ninth Circuit ruled that because Stacy had alleged he was within the zone of danger and that he suffered emotional distress from the fright caused by the defendants' negligent actions, he had properly stated a cause of action for negligent infliction of emotional distress.

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