United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is defendants Antarctic Mechanical Services, Inc.,
AMS Mechanical Holdings, and Phillip Bertellotti's Motion
for Partial Summary Judgment on Plaintiff Tracey James'
claim for “damages as a result of witnessing her
daughter and granddaughter” experience a vehicle
accident on September 18, 2015 (hereinafter referred to as
James' “bystander claim”). That day, James
was driving with her daughter and granddaughter in the back
seat when Bertellotti crashed into James' car. The
defendants argue that (1) James did not actually witness her
daughter and granddaughter experience the accident and (2)
that James has not identified sufficient evidence through
discovery to prove that she was injured due to her alleged
observation of her daughter and granddaughter's
experience. For the following reasons, the defendants'
motion is denied.
grounds for summary judgment are familiar and well
established. See Tatum v. Kelley, No.
3:11-CV-117-CWR-FKB, 2012 WL 956409, at *2 (S.D.Miss. Mar.
20, 2012). Because this case is proceeding in diversity, the
applicable substantive law is that of the forum state,
Mississippi. Id. (citation omitted). State law is
determined by looking to the decisions of the state's
highest court. Id. (citation omitted).
Mississippi law, a bystander to an accident suffered by
another person may recover for emotional-distress damages if
(1) was located near the scene of the accident, as contrasted
with one who was a distance away from it;
(2) experienced shock that resulted from a direct emotional
impact upon plaintiff from the sensory and contemporaneous
observance of the accident, as contrasted with learning of
the accident from others after its occurrence; and
(3) was closely related to the victim, as contrasted with an
absence of any relationship or the presence of only a distant
Entergy Mississippi, Inc. v. Acey, 153 So.3d 670,
673 (Miss. 2014) (citation omitted).
it is undisputed that the first and third factors have been
met. James was driving the car when the accident occurred.
She is considered closely related as the mother and
grandmother of the car's passengers.
to the second factor, there is sufficient evidence to create
a genuine dispute as to whether James contemporaneously
observed the accident. Defendants argue that James
did not see the accident take place, because -
according to their reading of James' deposition testimony
- James was looking forward the entire time and could not see
her daughter and granddaughter in the backseat when the
accident occurred. James counters that she “cut [her]
eyes . . . to the side just to see . . . what could have been
wrong” with her granddaughter. James also attests that
she heard her daughter “screaming, crying, and
hollering” when the crash occurred and for several
minutes thereafter. The parties disagree as to whether
James's statements concern her observations before,
during, or after the accident. For purposes of summary
judgment, the Court must “view the evidence and draw
reasonable inferences in the light most favorable to the
non-movant.” Tatum, 2012 WL 956409 at *2
(citation omitted). Accordingly, the Court finds that there
is a genuine dispute of material fact as to whether
James' observations were contemporaneous with the
accident. Accord Hernandez v. Ford Motor Co., 390
F.Supp.2d 602, 603 (S.D. Tex. 2005) (“Presence in the
automobile during the accident certainly allowed for
‘observance of the accident, as contrasted with
learning of the accident from others after its
occurrence.'”) (citation omitted).
also claim that James failed to develop evidence during
discovery that she suffered emotional distress by witnessing
her daughter and granddaughter experience the accident. They
argue that James did not “complain to any medical or
psychiatric provider that she was troubled by the accident
with respect to seeing her daughter and granddaughter
experience the collision.” Defendants also argue that
James' “medical records reflect that her
psychiatric complaints are unrelated to her
anguish is a nebulous concept . . . and requires substantial
proof for recovery.” Gamble ex rel. Gamble v.
Dollar Gen. Corp., 852 So.2d 5, 11 (Miss. 2003)
(citation omitted). When the defendant's conduct is
“malicious, intentional, willful, wanton, grossly
careless, indifferent or reckless, ” Sumler v. E.
Ford, Inc., 915 So.2d 1081, 1088 (Miss. Ct. App. 2005)
(citation omitted), and the “mental or emotional stress
is a foreseeable result of the conduct of the defendant,
” Gamble, 852 So.2d at 11 (citation omitted),
no further proof of injury is required. “The nature of
the act itself, rather than the seriousness of the
consequences, can justify an award for compensatory
damages.” Gamble, 852 So.2d at 11 (citation
emotional distress caused by ordinary negligence, Mississippi
law recognizes two alternative standards of proof for the
plaintiff to recover. Under the more relaxed or permissive
view, a plaintiff may recover so long as “the injury
was reasonably foreseeable by the tortfeasor.”
Montgomery v. CitiMortgage, Inc., 955 F.Supp.2d 640,
653 (S.D.Miss. 2013) (applying Mississippi law) (citation
omitted). Under the more stringent view, “the plaintiff
must prove some sort of injury or demonstrable harm, whether
it be physical or mental, and that harm must have been
reasonably foreseeable to the defendant.” Id.
there is a fact dispute as to whether Bertellotti was driving
under the influence of alcohol when the accident occurred. If
proven, that could be considered conduct that shows
“willful, wanton or reckless disregard for the safety
of others.” See James v. Antarctic Mechanical
Services, Inc., No. 3:18-CV-678-CWR-FKB, Docket No. 221
at 3 (S.D.Miss. Dec. 12, 2019) (citation omitted). In such
case, James would need to ...