Legislators in Florida try to pass bill to recognize wrongful death cause of action for parents of adult children

For the second time in two years, the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence. However, the bill has yet to pass through the Florida Senate, where it is facing opposition from the medical community and insurance carriers.  You can read the story here.

Strangely worded opinion in Indiana recognizes cause of action for emotional distress resulting from sexual abuse of a child, ... maybe?

A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress."  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child.  However, the opinion is very awkwardly worded.  It states that 

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

Here is my problem with this.  Notice how the court does not say that the caretaker owes a duty to the parents.  It says that IF the caretaker owes a duty to the parent.  This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty.  And, the parents will have to do this in addition to meeting all the other elements of the cause of action.  

In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case.   Unless I am missing something, this adds nothing to what we already knew.  To have a cause of action, the plaintiff always has to show the element of duty.

My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.  

Article on changes to the law in Tennessee on whether the law recognizes a wrongful death action for the death of an unborn fetus

 Over the years, I have posted comments and updates on whether the law recognizes (or should recognize) a wrongful death claim for the death of a stillborn fetus, or even for the loss of a pregnancy at any point in the pregnancy.  Go here for all the stories on "pre-natal torts."  

I am writing about this today because a few days ago I saw a short article on the state of the law in Tennessee which changed recently.  You can read the article here.