Cohler v. United States, 2008 U.S. Dist. LEXIS 48158 (D.V.I. June 24, 2008).

Terra Bowling, J.D.

The United States District Court for the District of the Virgin Islands recently rejected the emotional distress claims of five family members who watched a wave strike and injure a relative.

Background
While vacationing on a cruise ship, Norman Cohler and his family took a day trip to Trunk Bay Beach in the Virgin Islands National Park. At the beach, Cohler was struck and injured by shore-breaking waves. Cohler and his relatives who had accompanied him to the beach filed a negligence action against the U.S. government and the tour operator, Paradise Aqua Tours. Cohler sought damages for his injuries, claiming the government had a duty to exercise reasonable care to protect him from the dangerous conditions at Trunk Bay and that Paradise Aqua Tours had a duty to warn him and his family. Cohler’s relatives sought damages for the severe emotional distress they claim resulted from witnessing the accident.

Emotional Distress
To prevail on a claim for negligent infliction of emotional distress based on witnessing an injury to a third person, a plaintiff must show that s/he 1) was in the “zone of danger” when the accident occurred; 2) suffered bodily harm as a result of emotional disturbance; and, 3) is a member of the injured third party’s immediate family.

To be within the “zone of danger” for the purposes of an emotional distress claim, the plaintiff must either “sustain a physical impact as a result of defendant’s negligent conduct, or [be] placed in immediate risk of physical harm.”1 Because three of the family members were not in the ocean when Cohler was injured, the court found that they could not have sustained a physical impact from the waves or been in immediate risk of harm. They were therefore not within the “zone of danger.”

As for the remaining two family members who were within the “zone of danger” because they were in the water, they failed to demonstrate that they suffered physical harm as a result of the accident. Physical harm can “encompass bodily injury brought about solely by the internal operation of emotional distress,” but there must be evidence of bodily harm beyond that associated with fright or shock.2 While the court recognized that the family members within the zone of danger did suffer from shock, mental anguish and depression, the court found that these injuries were emotional, not physical, and therefore non-compensable. According to the court, neither relative presented sufficient evidence of any physical symptoms or manifestations of bodily harm.

Conclusion
The court determined that there were no material facts in dispute with respect to the plaintiffs’ claims of emotional distress and granted the government’s motion for summary judgment. Cohler’s claims against the defendants for his injuries will move forward. 

Endnotes
1.  Cohler v. United States, 2008 U.S. Dist. LEXIS 48158 at *4 (D.V.I. June 24, 2008).
2.  Id. at *11.