Tuesday, August 10, 2010

SC Ct of Appeals rejects pre-impact fear claim

All states recognize the right of a person's estate to recover some claims under "survival statutes." These statutes typically hold that some claims survive the death of the victim and can be claimed by the estate. And, again, typically, the claims are for the damages suffered by the decedent between the time of the accident and the time of death. There is some debate, however, as to whether courts should recognize claims for the value of the fear suffered by the victim in the moments just prior to his or her death in cases where death happens at the time of the accident. I have no problem believing that there is no question that the victim suffers emotional distress at realizing they are just about to die; but courts have debated whether that injury is one for which the law should recognize a remedy, at least in cases where that emotion lasts only for a few seconds or minutes. The blog Abnormal Use reported a couple of days ago on the most recent decision on the subject. In a short, but interesting post (available here), it reports that the South Carolina Court of Appeals has held that personal representatives of a victim cannot recover damages for the last few seconds of life when their decedent knew for a fact that they would die. The case is called Rutland v. South Carolina Dep't of Transp., (S.C. App. Aug. 4, 2010). I hope the case is appealed to the state's Supreme Court. This is not a common issue and it will be interesting to know what the state Supreme Court finally decides.

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