## Facts

- Two minor brothers, ages eight and twelve, crossed a street in a marked crosswalk with the walk signal alongside their seven-year-old brother.
- A pickup truck driven by Dennis Dixon Kluser allegedly was negligently driven through the crosswalk, striking and killing the youngest child and narrowly missing the two plaintiffs.
- The plaintiffs contemporaneously witnessed their brother’s death and alleged serious emotional and psychological injuries, including severe emotional distress, depression, PTSD, aggression, and severe anxiety.
- The plaintiffs asserted negligence claims seeking damages only for their emotional injuries; they did not allege physical impact or bodily injury to themselves.
- The trial court dismissed the complaint for failure to state a claim, applying an “impact rule” that required physical impact to recover for negligent infliction of emotional distress.
- The Oregon Court of Appeals affirmed, and the Oregon Supreme Court granted review.

## Issues

1. Whether Oregon negligence law permits a close family member bystander to recover damages for serious emotional distress from contemporaneously perceiving another person’s negligent death or serious physical injury, absent physical impact to the bystander.
2. Whether Oregon’s traditional “impact rule” categorically bars such bystander emotional distress claims at the pleading stage.

## Decision

- The Oregon Supreme Court reversed the Court of Appeals and the trial court and remanded.
- The court held that the impact rule does not categorically bar recovery for serious emotional distress in the alleged circumstances.
- The complaint plausibly alleged that defendant’s negligent driving created a foreseeable risk of serious emotional harm to the plaintiffs, who were close family members present at the scene and who directly perceived the fatal injury.

## Legal Principles

- Oregon negligence liability turns on whether the defendant unreasonably created a foreseeable risk of harm to the plaintiff and whether the conduct factually caused the harm, subject to policy-based limits.
- A categorical physical-impact requirement is inconsistent with a foreseeability-centered negligence approach when serious emotional harm to a close family bystander who directly perceives the injury is within the scope of the risk created by the negligent conduct.
- Policy concerns associated with emotional distress damages (including proof difficulties, trivial claims, and unlimited liability) can be managed through ordinary negligence constraints, including foreseeability, causation, and limiting considerations tied to:
  - close familial relationship,
  - temporal and spatial proximity with direct sensory perception, and
  - severity of the emotional injury.

## Conclusion

The Oregon Supreme Court held that close family member bystanders who contemporaneously perceive a negligently inflicted death or serious physical injury may seek damages for serious emotional distress without alleging physical impact, and it reinstated the plaintiffs’ complaint for further proceedings.


Philibert v. Kluser, 385 P.3d 1038 (Or. 2016)