The intersection along Highway 97 in Madras, Ore. where Alex Hollenbeck-Hatch was hit by a driver in Aug. 2011 and killed.

The intersection along Highway 97 in Madras, Ore. where Alex Hollenbeck-Hatch was hit by a driver in Aug. 2011 and killed.

Chris Lehman/OPB

The Oregon Supreme Court ruled Thursday that family members who witness the sudden injury or death of family members can file a lawsuit seeking damages.

Prior to the court’s ruling, Oregon was one of only four states that required those seeking damages to also experience physical injury themselves.

“(The court decision) lessened an old rule: The idea that you had to have physical impact to get emotional stress damages,” said Kathryn Clarke, the attorney who argued for the change. “It has loosened that connection. It’s a big deal.”

The Case

In August 2011, Austin Hollenbeck-Hatch, 7, was walking in downtown Madras, Oregon with his two brothers, Domanick, then 12, and Cameron, nearly 9.

It was a little before 8 a.m. and the three brothers were waiting for the light to turn green along Highway 97, according to court documents and news reports from the time.

Once the light changed, the three brothers walked into the crosswalk.

Dennis Kluser was at the intersection, too, behind the wheel of a pickup.

“Kluser was in his truck at the same intersection, and proceeded to turn across the crosswalk, narrowly missing Cameron and Domanick, but running over Austin,” Clarke wrote in court documents. “The truck stopped with its front tire resting on Austin’s chest.”

Kluser got out of his truck to see what he had hit. Once he saw Austin, Kluser backed up the vehicle. Struggling to breath, Austin died at the scene, according to documents.

“Cameron and Domanick were intimately involved with this event, and both suffered the foreseeable consequences of witnessing their brother’s brutal death – severe emotional distress, depression, post-traumatic stress disorder, aggression and severe anxiety resulting in panic attacks,” the court documents state.

The brother each seek damages of $51,500 for past and future counseling and $500,000 in other damages.

Flavio Ortiz, the attorney for Kluser, did not return requests to comment on the court’s ruling.

But in his brief to the Oregon Supreme Court, Ortiz argued the brothers who lived were not physically impacted by the collision.

“Whenever someone is seriously injured or killed in an accident, the victim’s
relatives and loved ones will learn about it and suffer in a variety of different ways,” Ortiz wrote.

“These are some of life’s most difficult moments,” he added. “However, this does not mean that liability for ordinary negligence should be extended to make such emotional injuries compensable.”

Court’s Ruling

Prior to the Oregon Supreme Court’s ruling, individuals could only bring emotional distress cases if they also experienced physical harm.

The change brings Oregon in line with the vast majority of the rest of the country. Georgia, Arkansas and Kansas are the lone states that now still require a plaintiff to experience physical injury before being able to seek emotional damages.

Oregon’s high court ruling states:

  • The first element is that the bystander must witness a sudden, serious physical injury to a third person negligently caused by the defendant.
  • Second, the plaintiff must have suffered serious emotional distress.
  • Third, in order to recover, the plaintiff must have perceived the events that caused injury to the third person as they occurred. … Observation of the scene of an accident after it has happened, or perceiving a recently injured person, does not meet this requirement.
  • The final element of the claim is that the physically injured person be a close family member of the plaintiff. Witnessing the injury of a stranger or acquaintance, while likely distressing, is not sufficient to recover.

“It has said that you don’t have to have a physical injury or physical impact in order to claim emotional stress damages when you are a bystander, who’s observed negligent harm caused to a family members,” Clarke said in an interview.

Beyond that, Clarke said, the court’s ruling validates the idea that emotional stress is its own injury.

“In any number of situations, you may be in a position where no physical injury is a predicate requirement in order to be compensated for emotional harm,” she said.

Twice before – in 1986 and 1988 – the Oregon Supreme Court tried to take up the issue. While the high court granted review, the cases settled before the court could weigh in.

“This is an important issue broadly about when you can recover for emotional distress,” said Cody Hoesly, an attorney who filed an amicus brief on behalf of the Oregon Trial Lawyers Association in support of the change.

“People often hear about personal injury cases, but there’s a lot of different cases where you don’t get physically injured and yet you suffer severe emotional distress,” he said. “That’s a very important topic as the law has evolved over the last several decades in particular.”

In September, Austin’s brother Cameron, died after a long battle with cancer. Having secured the ruling, Clarke said the family plans to move forward with the damages suit for Domanick and for Cameron’s estate.