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SAUNDERS v. AIR FLORIDA

March 10, 1983

WILBUR SAUNDERS and HILDA SAUNDERS, Plaintiffs,
v.
AIR FLORIDA, INC., Defendant



The opinion of the court was delivered by: GREEN

 This matter is before the Court upon the motion of defendant, Air Florida, Inc., to dismiss the complaint. This is an action for the wrongful death of a victim of the airplane crash in Washington, D.C. on January 13, 1982; the decedent was in his automobile on the 14th Street Bridge over the Potomac River in the District of Columbia when the airplane struck his car and killed him. The victim's parents, residents of the State of California, bring this action on his behalf pursuant to the District of Columbia wrongful death statute, D.C. Code § 16-2701. The decedent's father also asserts a cause of action for emotional shock he alleges he sustained when he "witnessed the injuries sustained by his son, 1st Lt. Michael Dean Saunders, via television communications." Plaintiffs characterize the second claim as one for negligent infliction of emotional distress and assert that it states a cause of action under either the law of the District of Columbia or the law of California.

 Air Florida, in seeking dismissal of the first count, asserts that plaintiffs lack capacity to bring a wrongful death action under the law of the District of Columbia in that neither of them is the victim's personal representative. Section 16-2702 of the District of Columbia Code provides that a wrongful death action may be brought only by a personal representative of the defendant. Air Florida also argues that plaintiffs furthermore lack capacity to bring a survival action pursuant to D.C. Code § 12-101, which requires that the person bringing the action be the "legal representative of the deceased." At the minimum, Air Florida argues, a person must be a heir-at-law before he can be a legal representative, and neither plaintiff is a heir of the decedent under District of Columbia or California law. Finally Air Florida argues that damages are not available under either District of Columbia or California law to the victim's father for the emotional distress alleged. For the reasons which follow, the Court holds that neither count states a claim upon which relief may be granted, and dismisses the complaint in its entirety with prejudice.

 I. The Wrongful Death Claim

 Section 16-2702 of the District of Columbia Code provides that an action pursuant to D.C. Code § 16-2701 "shall be brought by and in the name of the personal representative of the deceased person." The term "personal representative" as used in this section is limited to officially appointed executors and administrators. Strother v. District of Columbia, 372 A.2d 1291, 1296 n.7 (D.C. 1977). Neither plaintiff qualifies as the decedent's personal representative. The decedent's widow, Susan A. Saunders, is the duly appointed personal representative of his estate. See Susan A. Saunders v. Air Florida, Inc., Civil Action No. 82-1049 (D.D.C., filed Apr. 15, 1982). Her action has been settled and dismissed. Consequently, neither plaintiff in the instant action may bring a wrongful death action on behalf of the decedent.

 Nor do plaintiffs state a claim under the District of Columbia survival act, D.C. Code § 12-101. That statute provides that a cause of action that decedent would have had had he lived survives him in favor of his legal representative. If a decedent has left heirs-at-law, his legal representative shall be one of them. Strother v. District of Columbia, 372 A.2d at 1295-96 and 1296 n.6. As decedent left a widow and three children (see Amended Complaint, Susan A. Saunders v. Air Florida Inc., Civil Action No. 82-1049), his parents are not heirs of his under District of Columbia or California Law. See D.C. Code §§ 19-303, -305, -306; Cal. Prob. Code § 221. Moreover, as plaintiffs claim only damages suffered by them rather than losses of the decedent, they do not allege damages which are the proper subject of a survival action. D.C. Code § 12-101. Accordingly, plaintiffs' survival claim, as well as their wrongful death claim, shall be dismissed.

 II. The Emotional Shock Claim

 In this count, the male plaintiff asserts that he "was in close proximity to the hereinabove described incident and personally witnessed the injuries sustained by his son, 1st Lt. Michael Dean Saunders, via television communications." Complaint, para. 11. As a result, plaintiff alleges, he "sustained great emotional disturbance, shock, and injury to his nervous system which has caused, continued to cause, and will cause him great physical and mental pain and suffering in an amount to be proven at trial pursuant to rules of Court." Id. He also seeks damages in an indeterminate amount for costs of medical treatment and incidental expenses. Id. at P 12.

 A. District of Columbia Law

 Under the District of Columbia wrongful death act, the proper recovery is the amount of financial loss suffered by the spouse and next of kin as a result of the decedent's death. Runyon v. District of Columbia, 150 U.S. App. D.C. 228, 463 F.2d 1319, 1322 (D.C. Cir. 1972). There is no provision for the recovery by the decedent's survivors for mental suffering, grief, or anguish. Id. Plaintiff, however, argues that Runyon is inapplicable in that he has alleged a cause of action for negligent infliction of emotional distress "separate and distinct" from the statutory wrongful death claim.

 None of the cases cited by plaintiff supports the proposition that under the law of the District of Columbia a person may state a cause of action for grief or emotional distress arising from watching the commission of an injury-causing negligent act against a third party. Parrish v. United States, 123 U.S. App. D.C. 149, 357 F.2d 828 (D.C. Cir. 1966), involved a claim for emotional distress by a victim of an automobile accident who had sustained physical injuries as a result therefrom, against the party who was alleged to have negligently caused the accident. It was not a case involving one person's grief about another's injuries. Rothenberg v. Aero Mayflower Transit Co., 495 F. Supp. 399 (D.C. Cir. 1980), cited by plaintiff, was a case in which the court denied a claim for punitive damages. As such, this was not an action for negligent conduct, but for intentional or reckless infliction of emotional distress. 495 F. Supp. at 407. Finally, neither did Waldon v. Covington, 415 A.2d 1070 (D.C. 1980) concern a claim for emotional distress arising from another's injuries. That was, inter alia, a survival action for intentional infliction of emotional distress against the plaintiff's deceased husband. 415 A.2d at 1075 n.17, 1076, 1078 n.24.

 While plaintiff correctly notes that under Parrish the physical injury attendant to emotional distress need not be substantial in order for the emotional harm to be actionable, there must be some physical injury. Garber v. United States, 188 U.S. App. D.C. 172, 578 F.2d 414, 416 (D.C. Cir. 1978). However, plaintiff's allegations of physical injury are too tenuous to meet the requirements of Parrish. Moreover, where a cause of action for emotional distress has been allowed in the District of Columbia, it is the emotional distress which arises from the physical injury-causing impact, rather than the physical injury which arises from the emotional harm. Accordingly, there is no cause of action in the District of Columbia for negligent infliction of emotional shock occurring as the result of watching ...


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