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Emotional Distress Without Physical Injury = No Lawsuit.

At 2 a.m., a drunk driver crashes through your house while you sleep. You aren’t physically injured, but the incident dredges up memories of a past accident which claimed the life of your mother and daughter and now you have nightmares and trouble concentrating. Do you have a claim against that driver? Arkansas courts say “No.”

In Holman v. Flores, 2018 Ark. App. 298 (May 9, 2018), the Arkansas Court of Appeals was asked to recognize the tort of negligent infliction of emotional distress as a viable claim under Arkansas law. Rick Holman, his wife, Joy, four of their children, and a friend of their daughter’s were asleep in the Holman home at 2:40 a.m. when Anna Marie Flores, believed to be intoxicated, drove a vehicle into the home, causing damage. Rick suffered no physical injuries as a result of the incident. However, he claimed emotional distress because he said that it rekindled memories of a 1999 wreck in which he drove up on the burning remains of an accident in which his mother, his 18-month old daughter, and his nephew were burned to death and his oldest daughter remained in a coma for 30 days. Rick said that he now saw his mother’s vehicle every night in his dreams, his mind would race at night, and not a day went by when he did not think about the 1999 accident.

The Court of Appeals refused to recognize the tort of negligent infliction of emotional distress, stating that the Arkansas Supreme Court has declined to recognize the cause of action and that it is bound to follow Supreme Court precedent. In Dowty v. Riggs, 2010 Ark. 465, 385 S.W.3d 117 (2010), the Arkansas Supreme Court explained that if there is no physical injury, then there can be no recovery for mental or emotional pain and anguish because such an injury is thought to be too remote, uncertain, and difficult to ascertain. On the other hand, when a physical injury is suffered, mental pain and anguish may be considered because they are so intimately connected and too difficult to separate. The Dowty court acknowledged that the majority of jurisdictions in the United States do allow recovery for the negligent infliction of emotional distress and it stated that advances in the understanding of the effects of emotional trauma might cause the court to rethink its rejection of such claims and to re-visit the issue in the future. However, the Dowty court found that the facts before it (where the plaintiff witnessed her husband being shot in the arm and was forced to grab her child and flee the scene as gunshots continued to be fired) did not warrant the creation of a new tort.

Rick Holman was hoping that his case would be the one which would cause the Court of Appeals to re-visit Dowty. Instead, the Court of Appeals concluded that Dowty remains the law in Arkansas. The dismissal of Mr. Holman’s claim was affirmed. It is a virtual certainty, however, that plaintiffs’ attorneys will continue to file lawsuits making claims of negligent infliction of emotional distress, hoping that the particular facts of their case will convince our highest courts that such claims should be recognized and their lawsuits allowed to proceed.

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