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Ball v. Prentice9/28/1989
Gerad L. Ball appeals from adverse partial summary judgments on his negligence claim against William Prentice and the Estate of Jane Prentice, deceased. The trial court ruled he had no claim for negligent infliction of emotional distress, and that he either had no claim for punitive damages or he had not made a sufficient showing on the issue of punitive damages to entitle him to pretrial discovery of Prentice's assets.
We reverse the judgments and remand for further proceedings.
FACTS
While Gerad L. Ball was driving his truck within the speed limit on a preferred highway, he collided with an automobile driven by Jane Prentice. The collision was caused by her failure to yield the right of way at a stop sign. All witnesses agreed that Ball could not have avoided the collision. Jane Prentice died as a result of the collision, and an autopsy report showed that her blood alcohol content was .25, an amount greater than the legal limit permitted in Arizona. Ball received minor physical injuries, mostly bruises. However, he testified at his deposition that he suffered extreme shock from the accident and continues
to suffer loss of sleep, emotional agitation, tension, headaches, fear and anger, feelings of victimization and other physical and emotional abnormalities. Ball has not sought any treatment from third parties to correct his claimed injuries.
DAMAGES FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Ball alleges in his negligence complaint that as a result of the accident, he suffered property damage and personal injuries and that he continues to suffer from mental anguish that may be permanent. We cannot accept Prentice's argument that because Ball received only minor physical injuries in the collision he cannot as a matter of law recover for any physical harm resulting from the emotional distress. The nature, severity and extent of his injuries and whether they are supported by medical or other expert witnesses is a question for the trier of fact.
While there was some uncertainty about the right to recover damages for emotional distress without some physical injury or "impact" before Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979), and Quinn v. Turner, 155 Ariz. 225, 745 P.2d 972 (App.1987), there was little doubt that one could recover damages for emotional distress and accompanying physical injury as a result of a tortfeasor's negligence when one was physically involved in an accident and suffered some impact triggering the emotional responses. As one author has stated:
"Impact" has meant a slight blow, a trifling burn or electric shock, a trivial jolt or jar, a forcible seating on the floor, dust in the eye, or the inhalation of smoke. The requirement has even been satisfied by a fall brought about by a faint after a collision, or the plaintiff's own wrenching of her shoulder in reaction to the fright. "The magic formula 'impact' is pronounced; the door opens to the full joy of a complete recovery."
PROSSER AND KEETON ON THE LAW OF TORTS § 54 at 363-364 (5th ed. 1984) (footnotes omitted). See also Valley National Bank v. Brown, 110 Ariz. 260, 517 P.2d 1256 (1974). A collision that kills one person and damages two vehicles falls within any definition of sufficient "impact" to permit the recovery of emotional damages.
Prentice argued below, and again here, that Ball cannot recover any damages suffered from witnessing the death of Jane Prentice, a stranger. He is correct, Keck v. Jackson, supra, bu
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