Overruling decades of precedent, the Kentucky Supreme Court recently issued a decision holding that a plaintiff may seek damages for negligent infliction of emotional distress (NIED) without having suffered physical contact as a result of the defendant’s negligence. In Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012), the Court noted that the physical impact requirement for NIED claims had been rejected or abandoned by the vast majority of jurisdictions, and that prior Kentucky decisions had reduced the requirement to the level of “slight, trifling, or trivial” contact, including exposure to x-rays.
The Supreme Court determined that the better approach was to abolish the impact requirement, and instead to impose additional conditions on bringing a NIED claim to address the fact that such claims can be “speculative and difficult to measure.” Thus, the Court held that recovery for NIED may be had only for distress that is “severe” or “serious,” meaning that it signficantly affects the plaintiff’s everyday life or requires signficant treatment. A NIED claim must also be supported by medical or scientific evidence.
The Court held that the new rule would be applied retroactively to any claims tried or re-tried after the date of the decision, which was rendered in December 2012 and which became final in June 2013 upon denial of a petition for rehearing.Back to news