- Associated Press - Thursday, December 22, 2016

PORTLAND, Ore. (AP) - The Oregon Supreme Court on Thursday allowed a lawsuit to proceed that was filed on behalf of two boys who witnessed their younger brother hit and killed by a pickup truck five years ago.

The decision was a reversal of two lower court rulings that injured bystanders could not recover damages for emotional distress after seeing a loved one harmed because of negligence.

The lawsuit filed by Stacie Philibert now goes back to the Jefferson County Circuit Court for consideration.

Her 7-year-old son Austin was killed on Aug. 18, 2011 after being hit at a crosswalk in downtown Madras. Philibert sued the driver, claiming Austin’s two older brothers suffered emotional harm because they saw Austin die.

The opinion written by Chief Justice Thomas Balmer said the lower courts rejected the lawsuit by applying a legal concept called the “impact test” which required those seeking compensation for emotional distress to have also suffered a physical injury.

The Supreme Court applied a legal concept known as “the restatement rule” in which the witnesses to the death must have seen a sudden and serious injury, suffered serious emotional distress and be close relatives of the victim.

Balmer wrote that the justices are aware some aspects of the restatement rule may seem arbitrary and could prompt false or inflated claims.

“For as long as courts have awarded damages for emotional injuries, there have been concerns about plaintiffs bringing false claims,” the opinion said. “Juries are charged with discerning truth from self-serving fiction when plaintiffs testify about their own injuries and are as competent to do this in claims for emotional injuries as they are in other cases.”


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