MSN.com recently reported the harrowing experience of Joseph Azevedo and his adult son, Tommy Azevedo, both of whom had to be rescued by the Boston Harbor Police when their lobster boat tangled its prop on a trapline, then began to sink. At one point the younger Azevedo was trapped inside the vessel cabin when his life vest snagged as the boat went down. He ripped free and survived. We had a very similar case near the Potato Patch region of the Pacific Ocean at the Golden Gate bridge. A vessel used to set Dungeness Crab pots was heading south from Drake’s Bay area in a storm when a 30-foot-tall wave tore through the single level superstructure, blowing the captain and a deckhand out of the space, rolling the vessel over and trapping our client (“Mr. X”). Mr. X tore his raingear free and surfaced just in time to see the captain and deckhand disappear into a trough, never to be seen again. Our client paddled to the Rodeo Beach surf line using a cooler chest lid; being pulled to safety by storm/wave watchers.

           Mr. X suffered no real bodily injury, just scrapes on his hands. He was given a lift to where his wife picked him up. He began drinking alcohol excessively to quell nightmares. Within a month he began being abusive to his young children and wife, fortunately there was no physical violence. He referred to us. We suspected there was some emotional disturbance, was able to get him into treatment, where he was diagnosed with PTSD and an Adjustment Disorder. His successful claim for personal injury damage due to negligent infliction of emotional distress (“NIED”)  arose under the Jones Act (46 U.S.C., §30104). Whether under the Jones Act or under the court-made general maritime law applicable to passengers and others, the class of persons who qualify to make a NIED claims (“standing to sue”) is far narrower than state law. (As for passengers’ standing, see Sawyer Bros. Inc. v. Island Transporter, LLC, 887 F.3d 23, 36-38 (1st Cir. 2018).) Additionally, the federal case law has not evolved as new diagnoses related to NIED have evolved in the fields of psychology and psychiatry. Consequently, the maritime law’s desire to limit the scope of persons with standing to sue is far narrower that many states allow.

 Maritime personal injury claims of NIED are constricted by the United States Supreme Court’s holding in Conrail v. Gottshall, 512 U.S. 532 (1994). The opinion written by Justice Thomas (who has authored several of the Court’s maritime law opinions.) expanded the scope of who has standing to sue to include anyone who was in the “zone of danger”:

[T]he zone of danger test limits recovery for emotional injury

to 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. That is, "those within the

zone of danger of physical impact can recover for fright, and

those outside of it cannot."

Id., at 547-48. Before Gottshall, the field of would-be claimants was narrower, restricting the claim to those who sustained bodily impact.

[Under]the physical impact test, a plaintiff seeking damages for

emotional injury stemming from a negligent act must have

contemporaneously sustained a physical impact (no matter how slight)

or injury due to the defendant's conduct.

Ibid. A clear example of this former approach is seen in Gaston v. Flowers Transp., 675 F. Supp. 1036 (E.D. La. 1987). Plaintiff Gaston and his half-brother were deckhands on a barge when a collision threw Plaintiff’s half-brother overboard. Mr. Gaston unsuccessfully tried to rescue his sibling, sustaining bruises in the process. Gaston’s sibling was crushed to death. The United States District Court for the Eastern District of Louisiana held that Plaintiff Gaston could not sue.

Gaston's mental anguish did not arise from fear for his personal welfare,

but from the horror of seeing his half-brother crushed to death. There is

no evidence that Gaston feared for his own safety. . .

Id., At 1037. Note, this decision came before the Gottshall opinion and was prosecuted under a bystander theory.] The trial court’s ruling was affirmed on appeal to the Fifth Circuit: 866 F.2d 816 (5th Cir. 1989)[Bystander issue was a case of first impression in the circuit.]

 Contrast the approach of many states including that of California, which generally follows the relative bystander filter established by its Supreme Court in 1998. In  Dillon v. Legg, (1968) 68 Cal. 2d 728, the court allowed standing to a mother claiming damage for NIED. She had sustained emotional trauma and physical injury caused by witnessing the death of her child, who was struck and killed by a car negligently driven by defendant motorist. The Dillon court state three factors to be used as filtering devices to rule in or out would-be plaintiffs:

(1) Whether plaintiff was located near the scene of the accident as

contrasted with one who was a distance away from it. (2) Whether

the shock resulted from a direct emotional impact upon plaintiff from

the sensory and contemporaneous observance of the accident, as

contrasted with learning of the accident from others after its occurrence.

(3) Whether plaintiff and the victim were closely related, as contrasted

with an absence of any relationship or the presence of only a distant relationship.

Id., At 740-741. Other states follow the by-stander approach, some with stronger filters than others, including without limitation North Carolina [Pure bystander, no physical manifestation or impact required. See, Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990).] Alaska [Pure bystander; see, Tommy's Elbow Room v. Kavorkian, 727 P.2d 1038 (Alaska 1986), which adopted the reasoning of the Dillon court.], Massachusetts [Bystander: requiring physical harm manifested by objective symptomatology. See, Helfman v. Northeastern Univ., 485 Mass. 308, 327, 149 N.E.3d 758.] (2020), Florida [Without direct physical impact, claimant must show physical manifestation of mental injury; see, Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007).]

           Mental health providers in the United States over the years have developed standards for uniform diagnoses of mental disorders. These are contained in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) adding to or deleting or revising as the investigation and understanding of mental disorders progresses. First published in 1952 (DSM-1), the DSM is periodically reviewed and updated. As of 2022 the current publication is DSM-5-TR (fifth edition, text revision: Pub. Amer. Psychiatric Press). In DSM-5-TR, prolonged grief disorder (what Mr. Gaston may have had in combination with diagnosed PTSD) is now recognized as traumatically caused, appearing in the new section, Trauma-and Stressor-Related Disorders. Maritime law is concerned with opening the floodgates of spurious litigation:

The common law restricts recovery for negligent infliction of emotional

distress on the policy grounds of avoiding (1) a potential flood of trivial

suits; (2) the possibility of fraudulent claims that are difficult for judges

and juries to detect; and (3) the specter of unlimited and unpredictable liability.

Conrail v. Gottshall, supra, at 535. Berschler Associates argues that the intense detailed criteria imposed upon the disciplines of mental health providers by the DSM-5-TR in combination with now very effective testing is the best filter for the trivial and the fraudulent, such fears are better more equitably filtered rather that the blunt instrument non-scientific approach of attorney that have given us allegedly  “common sense” filters, such as zone of danger (exactly where is that boundary?) or  bodily impact (How much? What sort? Is slight enough? Apparently not in 1987; ask Mr. Gaston.) Relying upon such nationally recognized criteria would promote the uniformity that admiralty law regularly speaks of as being a fundamental principle in consideration of court-made law. See, Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)[“Equally well established is the rule that state statutes may not contravene . . . the general maritime law beyond certain limits. .]; also, see Offshore Logistics v. Tallentire, 477 U.S. 207 (1986)[Uniform application of the Death on the High Seas Act (DOHSA) 46 U.S.C., § § 30301–30308.] in a sense, the Gottschall court also was following the principle of uniformity, reinforcing the need to clarify the general maritime common law on NIED, rather than have each NIED case decided under the local state law where suit had been brought. common-law principles must play a significant role in our decision. See discussion in Conrail v. Gottshall, supra, at 544.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.