TO: FROM: DATE: RE:
Vinny Pacheco Benno Ashrafi, Section B2 October 28, 2003 File No. 092003 Peter Bloomer v. Utah 4-H Rodeo Co.
I. A.
Issue Under Utah law, has the statute of limitations run on a claim for Negligent Infliction of
Emotional Distress, (“NIED”), caused by an incident which occurred sixteen months ago, thus barring Mr. Bloomer‟s cause of action. B. For the purpose of collecting damages in a claim for NIED under Utah law, was Mr.
Bloomer in the zone of danger when a sheep trampled his son and jumped into a seat just a few feet away from him, causing him to be terrified for his own safety. II. A. Brief Answer No. Utah law allows a claim for NIED to be brought within four years of the injury
causing incident. In our case, the injury causing incident, the mutton busting contest, occurred on July 4th, 2002. Utah law will allow an action on such an incident up until July 4 th, 2006. B. Probably yes. A plaintiff can collect damages in a case of NIED only if the plaintiff is
personally at risk of bodily harm being in the zone of danger. In this case it is likely that Mr. Bloomer is in the zone of danger when a harmful sheep jumped over a three foot fence and landed two seats away from him. The sheep could have easily kicked or jumped on Mr. Bloomer causing him bodily harm. Because he was at risk of bodily harm, Mr. Bloomer was in the zone of danger thus enabling him to collect for damages related to NIED. III. Statement of Facts
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On July 4th, 2002, our client Peter Bloomer, (“Bloomer”), was attending the Salt Lake City‟s Annual Mutton Busting Contest with his seven-year old son Ethan. Ethan participated in the contest where children ride sheep for as long as ten seconds. Unfortunately a terrible accident took place during the event. Bloomer was sitting in the front row just three seats from the aisle when Ethan came riding out of the shoot. A few seconds into the ride the sheep went crazy and ran straight for the audience. The sheep suddenly stopped and jerked like mad until Ethan was thrown off. Then, with Ethan flat on his back, the sheep struck the lower part of Ethan‟s leg causing the bone to stick out of his bloodied leg. The sheep then jumped a three foot wall that separated the arena from the audience and landed in an empty seat, just two seats away from Bloomer. Bloomer was terrified that the sheep would stomp him just has Ethan had been stomped. Luckily the sheep jumped off the seat and ran up the aisle before injuring anyone else. IV. A. Discussion Under Utah law, has the statute of limitations run on a claim for Negligent Infliction
of Emotional Distress, (“NIED”), caused by an incident which occurred sixteen months ago, thus barring Mr. Bloomer’s cause of action. Utah Code Annotated requires an action upon negligence to be brought within four years of the injury causing incident. See Utah Code Ann. § 78-12-25 (1953). Here, the mutton busting event is the basis for the negligence action. The event took place less than sixteen months ago on July 4, 2002, allowing a claim to be brought up until July 4, 2006. Our client is well within the statute of limitations on this particular claim.
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B.
For the purpose of collecting damages in a claim for NIED under Utah law, was Mr.
Bloomer in the zone of danger when a sheep trampled his son and jumped into a seat just a few feet away from him, causing him to be terrified for his own safety. In 1992, the Supreme Court of Utah held that a plaintiff may recover for damages related to NIED if the following elements have been met: (1) The plaintiff suffered emotional distress resulting in illness or bodily harm; (2) the defendant acted negligently in causing plaintiff‟s emotional distress; and (3) the plaintiff must not have suffered emotional distress solely from witnessing harm to another, unless defendant‟s negligence placed the plaintiff at risk of bodily harm. See Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 240 (Utah 1993). In this case, emotional distress and negligence are assumed, leaving the third element at issue here. The plaintiff in Hansen witnessed her son and two others as they received an electrical shock from their boat at Lake Powell, Utah. She “claims that at the time she witnessed the harm to her son, she experienced a general „global‟ kind of fear, although she herself was not in fear of drowning or receiving an electrical shock.” Id. at 238. In Hansen, the plaintiff “was never in danger of drowning or receiving an electrical shock.” Id. She did not come in contact with water or electricity and could not have been harmed. The court held that only those who are placed in actual peril, as a result of defendant‟s negligence, can recover for NIED. “Those outside the zone of danger created by the defendant are not allowed recovery” Id. at 239. The plaintiff in Hansen did not recover because she did not satisfy the third element; more specifically, she was never in danger of bodily harm as determined by the court. Id. In 1988 the Supreme Court of Utah affirmed the “holding that a parent who is in the „zone of danger‟ may recover for the trauma associated with seeing a child injured.” Johnson v. Rogers, 763 P.2d 771, 773 (Utah 1988). In Johnson, the plaintiff and his son were standing on a
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sidewalk waiting for a “walk” signal. A truck jumped the curb killing the plaintiff‟s son and injuring the plaintiff. The plaintiff was so close to his son at the time of impact that the plaintiff himself was also struck, although he suffered minor injuries in relation to those suffered by his son. In Johnson, the court allowed the plaintiff to recover because he was in the “immediate zone of danger created by [the defendant].” Id. at 782. In sum, Utah courts award damages in cases of NIED only when the plaintiff is personally at risk of bodily harm by being in the zone of danger created by the defendant. Here, the facts of Bloomer‟s case are similar to those of Johnson and distinguishable from those of Hansen. The court allowed the Johnson plaintiff to recover because he was personally at risk of bodily harm, placing him in the zone of danger when a truck jumped a curb and hit him and his son. Likewise, Bloomer was personally at risk of harm when the sheep jumped the three foot wall landing within a few feet of him. The sheep had just stomped his son and was very capable of jumping on Bloomer with a single leap as evidenced by the ability of the sheep to jump over a wall. Therefore, like the plaintiff in Johnson, Bloomer meets the third element by personally being in the zone of danger. Unlike the plaintiff in Hansen, Bloomer was at risk of bodily harm and expressed concern regarding his own safety, placing him in the zone of danger. As the sheep jumped over the wall and landed a few feet from him, Bloomer became terrified the sheep would harm him. On the contrary, the plaintiff in Hansen stated that she was not in fear of drowning or receiving an electrical shock. These words, coupled with the courts finding that the plaintiff was not in danger, precluded her recovery. Hansen, 830 P.2d at 239. Because the courts allow recovery for a plaintiff who is personally within the zone of danger and fears peril, even if the plaintiff is not actually physically injured, Bloomer has a much stronger claim for NIED than the plaintiff in
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Hansen. See Id. at 240. Bloomer did fear for his own safety and was personally at risk because the very sheep which had just injured his son was within immediate striking distance. Because Bloomer was in the zone of danger, unlike the plaintiff in Hansen, he has a valid claim for NIED. On the other hand, the court may find that Bloomer was not in the zone of danger if they believe he was not at risk of injury from the sheep. The sheep did not injure Bloomer and while it is only necessary for Bloomer to be at risk of harm, ultimately it will be up to the trier of fact to determine this. However, on balance, the court is likely to find that Bloomer was in the zone of danger. The sheep had just stomped his son and had jumped a fence to come as close as two seats from Bloomer. The court is likely to find that Bloomer does meet the third element; specifically, he was in the zone of danger, and should be awarded damages for NIED. V. Conclusion In order to be awarded damages for NIED, our client must bring the action within four years of the injury causing incident, and have been personally at risk of harm in the zone of danger. The mutton busting event took place less than 16 months ago placing our client will within the statute of limitations. In addition, Bloomer was in a position of risk as the sheep came to within 2 seats of him. Moreover, Bloomer stated that he was terrified the sheep would stomp him just as it had stomped his son. Because the sheep was able to jump a fence and put Bloomer at risk of bodily harm, we have a strong prima facie case for NIED.
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