DISCUSSION

There are two potential claims that Bullock can bring against Air walk
Amusements (AA), a claim for loss of consortium and a claim for negligence
infliction of emotional distress. Bullock will probably prove her claim for loss of
consortium, but likely fail to prove her claim for negligent infliction of emotional
distress.
To satisfy her claim for loss of consortium Kurts underlying claim of
negligence must be proved, and Bullock must show that she suffered a loss of
Kurts society and companionship as a result of Kurts tortious injury. See R.I.
Gen. Laws 9-1-41(c) (2008).
To satisfy her claim for negligent infliction of emotional distress (NIED)
Bullock must prove that she is closely related to Kurt, was present at the scene of
the accident and aware that Kurt was being injured, and as a result of the accident,
suffered serious emotional injury that manifest itself with physical
symptomatology. See Marchetti v. Parsons, 638 A.2d 1047, 1052 (R.I. 1994).
Only two classes of persons can recover for a claim of NIED, those that are
within the zone-of-danger, and a bystander to the accident. The zone-of-danger
approach applies to those individuals who are physically endangered by the acts of
a defendant. Simone v. The Rhode Island Co., 66 A. 202, 205 (R.I. 1907).

The bystander approach applies to those individuals who can establish an

adequate relationship between the defendants conduct and the plaintiffs injury
based upon factors such as the actual witnessing of the accident and the personal
relationship existing between the bystander-plaintiff and the victim. DAmbra v.
United States, 338 A.2d 524, 531 (R.I. 1975).
This approach was first adopted by the DAmbra court when faced with a
mother who negligently watched her son being struck and killed by a mail truck.
Id. at 525. Under the previous zone-of-danger standard, the mother would not
have been allowed to recover for NIED because she was in no physical danger at
the time of her sons death.
While recognizing that the mother had suffered serious emotional injury
from witnessing the death of her son, the court feared that expanding the zone-ofdanger standard would cause the legal system to be overrun with fraudulent claims.
Id. On the other hand, they were reluctant to bar an entire class of claims with a
bright light rule for fear that occasional recovery [may] be ill-founded. Id. at 530.
Ultimately, the court expanded the zone-of-danger standard to include bystanders
stating that when this approach is viewed as the exception rather than the rule,
the administrative difficulty of weeding out fraudulent claims was not impossible.
Id. at 531. Accordingly, Bullock meets the standard for bystander recovery and
can bring her claim for NIED under that theory.
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I.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Bullock will prove the first element of NIED, that she has a close personal

relationship to Kurt. Rhode Island has agreed that among personal relationships
there is none closer than that of a mother and child. Id. Bullock and Kurts
relationship as mother and child satisfies this element of NIED.
Bullock will probably not prove that she meets the element of proximity and
awareness. In order to prove this element a party must be present at the scene of
the accident and be aware that the victim is being injured. Marchetti, 638 A.2d at
1050. The court has further strengthened this nexus between proximity and
awareness by requiring a contemporaneous awareness of the causal connection
between the alleged negligence of the defendant and the victims injury. Coutu v.
Tracy, No. C.A. PC/00-3720, 2006 WL 1314261, at *6 (R.I. Super. May 11, 2006).
This causal connection is most clearly demonstrated where a child was
administered Propofol over the course of four days which caused him to go into
cardiac arrest and subsequently die. The court denied the parents recovery under
NIED stating that while the parents were present the whole time, neither the
doctors nor the parents were aware that the Propofol was the cause of their childs
demise until after his death. Id.
The court has also repeatedly denied recovery where the parent merely tends
to the injuries of the child, but does not actually witness the accident. Caparco v.
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Lambert, 402 A.2d 1180, 1181 (R.I. 1979). For example, the mother of a four-year
old whose leg was crushed by a vehicle was not allowed recovery for NIED
because she did not actually witness the accident; merely tended to the injuries
after the fact. Id. Similarly, the parents of a young girl who was stuck by a car and
spent six weeks in a coma could not recover for NIED because they were not
present at the scene of the accident and did not become aware of their daughters
injuries until they arrived at the hospital. Marchetti, 638 A.2d at 1048.
Like the parents in Marchetti, Bullock did not witness her son fall from the
Super Slide. While she was just one attraction away, Rhode Island law is clear that
a parent must both witness the accident and have a contemporaneous awareness
that the child is being injured at the time. Bullock meets neither of these
requirements. Even though she was in close proximity to the accident and heard
screaming, she did not actually see the accident happen and did not become aware
that her son may be injured until she heard another mother scream.
Even the shock and fright that she felt upon first seeing Kurt lying on the
ground motionless will probably not overcome the proximity and awareness
requirements of this element of NIED because she was not fully aware of extent of
Kurts injuries until two days later when he was diagnosed. With such a high legal
standard for recovery, it is unlikely that Bullock will be able to prove this element
of NIED.
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Bullock will prove the last element of NIED: she has suffered emotional
distress manifested by physical symptomatology. The physical symptomatology
required to prove this element of NIED can range from severe nightmares and
headaches to inability to sleep, socialize or function normally but only when those
symptoms are confirmed by a physician. Grieco v. Napolitano, 813 A.2d 994, 998
(R.I. 2003).
While some jurisdictions have abandoned the requirement of physical
symptomatology, there are two reasons why Rhode Island still requires this
standard. First, there is inherent difficulty in proving emotional distress claims
absent objective physical symptomatology. Reilly v. United States, 547 A.2d 894,
897 (R.I. 1988).

Second, the court attempts to contain the source and scope of the

defendants liability where the defendant has not been intentionally negligent. Id.
The court further explains that since physical symptomatology is required where a
defendants conduct has been extreme and outrageous, public policy dictates that
where the defendant has not been intentionally negligent, the need for physical
symptomatology applies with even greater force. Id. at 899.
For example, the parents of a child stuck by a car that were subsequently
treated for depression, anxiety and panic attacks demonstrated sufficient physical
symptomatology to prove this element of NIED. Marchetti, 638 A.2d at 1052. In
contrast, a pregnant woman who was injured in a car accident and felt a black
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cloud over her until her healthy baby was delivered was not allowed recovery
under NIED, because her symptoms on their own were insufficient to constitute
the physical symptomatology that is required. Perotti v. Gonicberg, 877 A.2d
631, 638 (R.I. 2005).
Bullocks severe emotional distress is sufficiently demonstrated by physical
symptoms. Like the anxiety and depression in Marchetti, Bullocks depression and
feelings of being overwhelmed while taking care of Kurt were confirmed by a
psychiatrist. She was also prescribed Valium which she continues to take daily in
order to deal memory of the accident.
Since Bullocks back injury was not caused by emotional distress, it is
probable that it will not further this element of her claim. Bullocks back was
aggravated by the lifting and carrying of Kurt while he was recovering, it was not a
direct result of the accident itself. Her back injury is also not an emotional claim
with physical symptoms; it is purely a physical symptom of caring for Kurt and
does not meet the requirement of this element. Even without her back injury,
Bullocks emotional distress alone will establish this element of NIED.
Overall, Bullock will probably not prove her claim of NIED. Even though
she can establish a close relationship to Kurt, and prove that she suffered emotional
distress accompanied by physical symptomatology, she did not actually witness the
accident which is a key requirement to prove a claim for NIED.
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II.

LOSS OF CONSORTIUM
Bullock will prove her claim for loss of consortium. The success of a loss of

consortium claim is not an independent claim, but derivative in nature, and

dependent upon the success of the underlying tort claim. Sama v. Cardi Corp., 569
A.2d 432, 433 (R.I. 1990). The claimant must demonstrate through testimony and
evidence thatshe incurred some sort of loss. Jameson v. Hawthorne, 635 A.2d
1167, 1172-73 (R.I.1994). The loss incurred need not manifest itself with physical
symptoms. Fritz v. May Dep't Stores Co., 866 F. Supp. 66 (D.R.I. 1994) (applying
Rhode Island state law).
For example, the parents of a three-year old burn victim who had to inflict
pain on their son in order to change his bandages, and then confine him to a stroller
at Disney World in order to keep his wounds clean were entitled to recover for loss
of consortium. Shepardson v. Consol. Med. Equip., 714 A.2d 1181, 1185 (R.I.
1998). In contrast, where a mother could not remember any of the events of her
sons underlying injury, her complaint for loss of consortium was dismissed.
Pierce v. Rhode Island Hosp., 875 A.2d 424, 428 (R.I. 2005).
AA has already admitted fault to Kurts underlying claim of negligence,
therefore, Bullocks claim is of a derivative nature. She can show that due to AAs
negligence, she was forced to care for her son night and day, which put measurable
stress on her that still requires daily medication. During that time, she was unable
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to enjoy Kurts society and companionship and was forced to keep him immobile
and in the house. Therefore, Bullock can prove her claim for loss of consortium.
CONCLUSION
Based on the foregoing, Bullock will probably prove her claim for loss of
consortium; however, she will not prove her claim for NIED because she did not
physically witness the accident and have a contemporaneous awareness that Kurt
was being injured.