The Easter Egg hunt of the Dye family of New Jersey was interrupted by a rather unexpected event: the fatal fall of a skydiver. Arkady Shenker, 49, had jumped around 13,500 feet wearing a “wing suit” that might have malfunctioned. The result was tragic for everyone and could lead to some interesting tort liability questions.
In Torts, I often discuss my collection of “falling body” cases where people are killing or injured by falling bodies of one type or another. Macabre to be sure but it helps teach the principles of res ipsa loquitur. The family says that Shenker appeared to still be breathing when they ran to him.
The horrific accident could raise a product claim over the wing suit not only for Shenker but those who witnessed the accident. For Shenker’s family, there remains the question of plaintiff’s conduct in either assuming the risk or comparative negligence. There is also the question of causation and whether under res ipsa loquitur this is the type of accident that does not normally occur without negligence. One could see a wide array of accidents caused by people making bad judgments or freezing up at key moments.
As for the family, there is the negligent infliction of emotional distress. However, they were not related to Shenker and were not injured themselves physically. That could cause problems in some states. A few still require contact while others follow the zone of danger test. At one time, the tort was limited by the need for physical contact or injury. The “zone of danger” test expanded on that concept where a plaintiff demonstrates negligence causing emotional distress and that she was within the zone of physical danger of the negligent act. This test was expanded further in those states following Dillon v. Legg, 441 P.2d 912 (Cal. 1968), which questioned the viability or artificiality of the zone test:
“[P]laintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant’s conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses.”
The bystander rule under Dillon requires that the victims be physically in a position to witness the injury (proximity) and that the plaintiff and the direct victim be closely related. That could be a problem here. However, it depends on the jurisdiction and how the claims are fashioned.
This case does seem to support those states pushing beyond Dillon in extending potential liability to non-family members. The exposure of children at such an event is particularly harmful.