Damages For Pre-Impact Fright Are Recoverable Under New Jersey Law
December, 2006
In a recent case of first impression, the United States District Court, District of New Jersey, held that the New Jersey Survivor’s Act permits plaintiffs to recover damages for pre-impact fright. See In re Jacoby Airplane Crash Litig., Civ. No. 99-6073, 2006 U.S. Dist. LEXIS 87816 (D.N.J. 2006).
Jacoby arises out of a 1999 plane crash that occurred moments after the plane, piloted by Itzhak Jacoby, took off from Linden Airport and crashed onto the streets of Newark, New Jersey. Jacoby at *7. Jacoby’s estate alleged that the combination of a defective turn indicator and denial of higher altitude clearance caused the plane to crash. Id. at *9. Accordingly, plaintiffs pursued negligence and subrogation claims against S-Tec, the Texas-based company that manufactured the airplane’s autopilot, and the Federal Aviation Administration, who employed the air traffic controllers. Id. at *9.
The Court’s ruling actually arose out of an S-Tec motion in limine that sought to “exclude evidence of any pre-impact fright based on existing case law.” Id. S-Tec premised its motion on the grounds that “New Jersey law [did] not recognize pre-impact fright as a compensable injury.” Id.
The New Jersey Survivor’s Act, (“NJSA”), on its face, allows the executor or administrator of an estate to recover damages that the deceased could have pursued had he or she survived. N.J.S.A. 2A:15-3. However, its application is less clear and has been heavily litigated in New Jersey courts.
The Court derived its decision from an evolving expansion of plaintiffs’ rights under the NJSA. In concluding that pre-impact fright is compensable under the NJSA, the Court relied heavily on Smith v. Whitaker, 160 N.J. 221 (1999). While the New Jersey Supreme Court opted to avoid the issue of pre-impact fright directly in Smith, the Supreme Court did establish that damages were recoverable where a plaintiff could provide evidence of the post-impact, pre-death pain and suffering of the decedent. Id. at 234. In Smith, the Supreme Court determined that the NJSA permitted a decedent’s estate to recover for any loss to the decedent occurring between injury and death. Id.
The Jacoby decision also encompassed the evolution of New Jersey case law with respect to emotional distress. See Falzone v. Bush, 45 N.J. 559 (1965). In Falzone, the New Jersey Supreme Court held that an injured party may recover damages where a defendant’s negligence created a reasonable fear of immediate personal injury. Id. at 569. However, the Falzone Court qualified its decision, limiting its holding to situations where a plaintiff’s damages were akin to those that would have been sustained had they occurred as a consequence of direct physical injury, rather than fright alone. Id.
“Based on the evolution of New Jersey case law with respect to emotional distress” as articulated in Falzone, coupled with the Smith analysis of the NJSA, the Jacoby Court held that the decedent’s estate was “entitled to an opportunity to convince the trier of fact that the decedent experienced pre-impact fright.” Jacoby at *18.
By denying S-Tec’s motion in limine, the Court held that under New Jersey law, a decedent’s estate must present evidence that the decedent suffered fright from a reasonable fear of imminent personal injury proximately caused by negligent conduct of the defendant. Id. at *21. The Court noted that Jacoby’s estate could prove pre-impact fright by, for example, submitting evidence of an audio in which the deceased pilot could be heard taking several deep breaths prior to impact. Id. at *21-22. The Jacoby Court further determined that the probative value of such evidence outweighed the potential prejudice to defendants. Id. at *22, citing Fed. R. Evid. 403. Despite allowing admissibility of pre-impact terror, the Court cautioned that “damages based on pre-impact fright ‘should compensate a decedent’s pre-impact fright, not the resultant death.’” Id., citing Beynon at 508.
Learning Point:
Damages for pre-impact fright are now recoverable under the provisions of the New Jersey Survivors Act. As a result of Jacoby, New Jersey joins Maryland, New York and Texas as jurisdictions that permit pre-impact fright damages in cases involving statues similar to the NJSA. The burden rests upon the plaintiff to present evidence establishing that a decedent experienced pre-impact fright; and, emotionally charged evidence may be admissible to establish the value of the deceased’s pre-impact fright in terms of monetary damages.
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