Much has been made in recent days of the family of a six year old who attended Sandy Hook Elementary School seeking permission from the State to allow a lawsuit against the State.
Little of the commentary or reporting has been substantive.
I do not think this claim ever becomes a lawsuit. For the purpose of this post I’ll assume this family gets its day in court.
What’s the underlying cause of action?
The claim that the family is seemingly asserting is a cause of action for bystander emotional distress. You can read the claim here. Now it’s possible there’s more to it than that.
Attorney Irv Pinsky’s six-year-old client heard the “cursing, screaming, and shooting,” over the intercom Dec. 14 when a gunman entered Sandy Hook Elementary School and killed her friends.
“You’re having a wonderful life and then the next thing you know your friends are all getting killed and you’re in danger,” Pinsky said Friday. CT News Junkie.
Another quote from the Courant:
“She was in her classroom, and over the loudspeaker came the horrific confrontation between the fellow who shot everybody and other people,” Pinsky said. “Her friends were killed. That’s pretty traumatic.”
With good reason, the law generally does not compensate people who witness terrible events. Terrible events happen frequently. Imagine if everyone who watched the planes strike the World Trade Center on television had a cause of action?
Connecticut recognizes a very limited set of circumstances when a bystander can recover emotional distress damages.
The Connecticut Supreme Court in Clohessy v. Bachelor, 237 Conn. 31 (1995) adopted a “reasonable foreseeability” rule and set forth a four-pronged test for the recognition of a cause of action for bystander emotional distress.
A bystander can recover if: “(1) … she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury …; (3) the injury to the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.
The law requires that the bystander be closely related to the victim. Who is a close relative has been the subject of much litigation. However the following holds true:
The “closely related” condition remains an exacting requirement that still bars strangers, distant relatives, and friends from recovering for bystander emotional distress. Yovino v. Big Bubba’s BBQ, LLC, 49 Conn. Supp. 555, 564, 896 A.2d 161, 166-67 (Super. Ct. 2006).
In my opinion, there’s little substance to this story. It’s highly unlikely that the Connecticut Supreme Court will extend bystander liability to encompass “friends” – that’s too slippery of a slope.
Under existing law, it’s hard to see the cause of action (as reported in the press) surviving a motion to strike.
Of course, different attorneys see things differently. It’s possible Attorney Pinsky believes he can convince the Connecticut Supreme Court to expand liability to cover this situation. New causes of action do arise from time to time.
In my opinion, it’s a baseless claim if it ever becomes a claim. I can’t think of a good reason to try to assert this claim against the State. To the extent there’s any claim it rests against the Estate of Adam Lanza.
On a personal level, it makes me sad. Sad that this kind of claim, that in my opinion the claim against the State has virtually no chance of success. In my opinion, it is divisive and unnecessary.