New obstacles in Kentucky emotional distress claims


A recent decision by Kentucky’s highest court has left the law governing certain negligence cases in a state of transition.

It is common for plaintiffs to assert a claim for emotional distress, such as anxiety or depression, to maximize their damages. Until very recently, Kentucky courts applied a strict rule known as the “impact rule” for such cases. Under this rule, an individual claiming emotional damages resulting from negligence could recover such damages only if the individual could prove that he was somehow physically contacted; essentially, no contact equaled no recovery.

The impact rule was not perfect and certainly had its critics. However, the rule served a useful purpose to defendants, who could rely on the impact rule as a defense and avoid exposure and expense by disposing of emotional distress claims that lacked physical impact before proceeding far into litigation.

On December 20, 2012, the Kentucky Supreme Court issued its opinion in Osborne v. Keeny, and eliminated the impact rule. In Osborne, an individual sued after a pilot negligently crashed an airplane into her house. The plaintiff alleged, among other things, that she suffered emotional distress due to the crash. However, she was not physically contacted or injured.

The defendant attempted to rely on the impact rule, arguing that because the plaintiff had not been physically contacted, she could not sue for mental damages. In an opinion that surprised the legal community, the Supreme Court rejected the defense. The Court explained that while the rule was intended to be a bright-line test, it often led to more confusion and other states had already abandoned the rule “in droves.”

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