Oregon Supreme Court Overturns the “Physical Impact Rule” by Katie Eichner and Jeffrey Young

Posted on January 6, 2017

For years, Oregon law held that a plaintiff could not recover for purely emotional or psychic injury without a special relationship or a direct accompanying injury.  Family members could not seek emotional distress damages for witnessing the death of a loved one under this long-standing rule, known as the “physical impact” rule.  The Oregon Supreme Court overturned this rule today in favor of a test modeled on the Restatement (Third) of Torts section 48 (2012).  Now, a bystander may recover for the emotional distress of witnessing a close family member suffer a sudden and serious physical injury that was negligently caused by a defendant. The emotional distress must be serious and the family member must have witnessed the events as they happened.  The case name is Philibert v. Kluser.  360 Or 698 (2016).