Kentucky: Supreme Court Rejects “Pre-Impact Fear” Damages

In a case full of procedural disputes among the parties, the Supreme Court of Kentucky rejected a jury award of $100,000 for “pre-impact fear damages.”

The case, Steel Technologies, Inc. v. Jason Congleton, et al., Case No. 2005-SC-000551-DG, handed down on June 21, arose from an accident involving a tractor-trailer and a pick-up truck. The tractor-trailer was driven by an employee of Steel Technologies, Inc. and was used to haul large steel coils from Ghent, Ky., to other sites. On the day of the accident, Ralph Arnold was hauling a steel coil weighing approximately 37,000 pounds; however he secured the coil to the flatbed trailer improperly, using only three steel chains instead of the minimum of five chains required by regulations promulgated by the Federal Motor Carrier Safety Administration.

While driving on a state highway, Arnold was forced to break suddenly, which broke two of the chains securing the steel coil. The coil then fell off the flatbed directly into the path of an oncoming pick-up truck in the next lane. The pick-up struck the steel coil and bounced off the side of the road, striking a stone wall before coming to a stop. The driver of the pick-up, Melissa Congleton, died at the scene from the impact.

A lawsuit was filed against Steel Technologies seeking damages for wrongful death on behalf of her estate, intentional infliction of emotional distress, pain and suffering, and punitive damages. The spouse also sued on his own behalf for loss of consortium and on behalf of their two children for loss of parental consortium.

Prior to trial, the trial court granted summary judgment against Steel Technologies on the issue of liability, holding the company vicariously liable for the driver’s actions as a matter of law. The case was then tried on the remaining issue of damages.

The jury returned awards for compensatory damages, loss of consortium for each child, punitive damages, and $100,000 in pre-impact fear damages. Steel Technologies paid part of the judgment but appealed the awards for punitive damages, pre-impact fear, and parental consortium. The Court of Appeals affirmed.

In reversing the award of damages for pre-impact fear, the court reviewed the long-standing “impact rule.” While the plaintiffs argued that the impact rule was satisfied since Congleton was struck by the steel coil, the court reviewed the history of the rule and ultimately agreed with the defense position that it is not enough that emotional distress be accompanied by physical contact or impact; the emotional distress must be caused by the contact or impact.

In this case, it was clear there was no suggestion of pain and suffering after the impact because the victim was struck unconscious by the impact.

While the court upheld the long-standing Kentucky rule requiring that impact must occur before any compensable pain and suffering, the court did suggest that “injury actions could well give rise to a strong challenge to the impact rule in the future if the victim can give a first-hand account or reliable eyewitness testimony is available, and there is demonstrable evidence of mental distress manifesting in a medical injury proven through expert testimony.”

Direct questions to NAMIC’s Regulatory Affairs Counsel Marsha Harrison.

Posted: Tuesday, July 03, 2007 12:00:00 AM.

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