EP 08 S 07: Can I Recover Dollars for EMOTIONAL INJURIES after an ACCIDENT ?
In this episode I explain how you could recover compensation for emotional distress after an accident. Learn how you can sue the at-fault party for your anxiety, emotional distress, or other emotional challenges following an accident.
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Hi, everybody. This is our Arkady Frekhtman in New York City, personal injury trial attorney. And today, we’re answering the question, what emotional injuries are compensable under New York law? Meaning, if I was in any type of traumatic incident, a car crash, a slip and fall, and I got injured, can I recover for my emotional injuries, my mental anguish, mental distress? Mental health is very, very popular right now. It’s becoming a very popular topic and a lot of people are suffering mental health issues after the COVID-19 pandemic. And what’s been popping up are Zoom sessions you can do, video sessions with therapists and it’s very popular and there’s all different types of therapists. There’s psychologists, psychiatrists, different types of mental health practitioners. And it’s very important, and we saw, for example, Simone Biles, she withdrew from the Olympics because she said, “Look, I need a mental health break because it’s a lot of stress,” right?
So can you recover for emotional injuries in New York? And the answer is, yes, you can recover for the physical injury and the emotional pain and suffering due to a car crash, a slip and fall, any type of personal injury. You can. And typical issues that people have when they have an inability to handle or manage the emotional trauma, some examples are, people just get fatigued, they have sleeping problems, they feel numb and disconnected, they want to be alone, they don’t want to be with other people or social interactions, they get mentally confused. And some of that is similar to a traumatic brain injury. They have difficulty concentrating, a sense of shock or disbelief, they feel guilty about the accident, they get irritable, angry with mood swings, they withdraw from others and they want to spend time alone.
So these are all symptoms, including some people even have tension. They feel a rapid heartbeat or they feel muscle tension because of the emotional injury. So with psychological trauma, under the law, it falls under pain and suffering. And we’ll go through the law just in a few seconds. So it falls under pain and suffering. So when the judge charges pain and suffering in the jury instructions, emotional trauma is part of that. Psychological trauma is part of that. And New York law specifically recognizes things like shock, grief, anxiety, fear, humiliation, embarrassment, apprehension, worry, and stress. So those are things that are specifically recognized in the law. So if you turn to the damages jury instruction, this is what the judge will actually read to the jury. You have the jury sitting there, it will be eight jurors, six jurors in a civil case, plus two alternates.
So the judge will read these instructions to the jury and then the jury, based on these instructions, based on these rules, is going to answer questions. And one of the questions will be, was the defendant negligent? Yes, right? Was the defendant’s negligence a substantial factor in causing the injury? Yes. So that’s liability. Now, you’ve proven that. Now you get to damages. In damages, they ask them to allow for a sum of money that will justly and fairly compensate the plaintiff for all losses resulting from the injuries and disabilities he or she suffered. And that is the language of the damages charged in New York. It’s called a charge because they charge the jury. It’s just a jury instruction. They read it, and then the jury will then have to put an amount for the damages. So it’s a sum of money that’ll justly and fairly compensate for all losses. And the purpose of it is to restore the plaintiff to the position he or she would’ve been in before the injury.
And that’s based on the McDougald versus Garber case from 1989. So that is in the pattern jury instructions. Now, with injury, pain, and suffering, and disability, these are all separate components. And I think they should be argued separately. You have the injury, you have the pain, you have the suffering, you have the disability. And then, according to the pattern jury instructions, pain and suffering encompasses all general non-economic damages. It’s in the CPLR. It’s the CPLR 4111 in section D, E and F. So it encompasses everything, right? Pain and suffering encompasses things like shock and fright, mental suffering, disfigurement, emotional consequences of an injury. I believe you cannot get separate line items for it in the verdict sheets. So when the jury will fill it out, they’ll just be asked, “What is the amount that you allow for pain and suffering?”
And you can’t say, “Look, I want this much for shock. I want this much for fright. I want this much for anxiety.” That would be better for the plaintiffs because then all that would add up to a total that would be higher. It says you cannot get separate line items, but they’re all-encompassing in pain and suffering. So the other part of it is that you can get loss of enjoyment of life. And that just basically says you consider the plaintiff’s life and the ability to enjoy life before this accident happened. And that includes the loss of the ability to perform daily tasks, right? So emotional injury could affect your daily tasks. If you’re always worried, if you’re emotionally disrupted, you have the psychological trauma, you can’t perform daily tasks. That’s number one.
Number two, it hurts the ability of someone to participate in activities which were part of the person’s life before the injury. So that could be anything that the person enjoyed, right? It could be working, it could be going to the beach, it could be sports. And then an emotional or psychological trauma, of course, could affect that. And then the third part is to experience the pleasures of life. Same thing, right? Experiencing the pleasures of life, everyone likes to do different things, spend time with family, with loved ones, with friends, go to the beach or play sports, or maybe read a book, whatever you’d like to do, watch something nice on Netflix, but you can’t do it because you have this emotional trauma. So I think that could be fit into loss of enjoyment of life as well.
And then there’s another charge, which is 2:284, and that is recovery for emotional distress and the physical consequences of the emotional distress. And this charge, basically, if somebody proves that they have an emotional injury, right? That they have mental anguish, but you have to prove it, so you have to testify that it happened, you have to have a journal. You don’t have to have a journal, but it’s a good idea to have a journal to show instances of the emotional distress. If you’re doing these Zoom sessions with a therapist, it’s good maybe to have the therapist come and testify. It’s always good to see a professional to get it diagnosed, either from a psychiatrist, psychologist, therapist, any kind of professional because then it’s diagnosed just like you would diagnose an injury like a herniated disc. So you diagnose the emotional injury.
So you have the diagnosis from a doctor or therapist, you have the medical records, you have maybe some notes or parts of your session, whether it’s in person or through Zoom. And then you can ask people in your life, like people who you interact with, circle of friends, community witnesses to come to court and talk about how this injury has changed your life, including the emotional injury, “Hey, this person was really social. They used to go out. They used to have so much fun. They used to be the life of the party. Now, after this crash, after the broken leg, after the spinal fusion, or after the TBI, now they stay home. Now they’re more of a recluse. They’re more of a hermit. They’re afraid to go outside. I don’t see them anymore.” And just something like that, two, three minutes on the stand can be so powerful and you can depose these witnesses too. All you have to do is exchange the name and address of the witness in New York and then you can call them at trial.
So getting back to this, so this is a specific charge and they tell you, this is not a charge that has anything to do with liability, right? Liability is a separate issue. Sometimes you even have two separate trials, a liability trial bifurcated with the damages trial coming after. So this charge, 2:284, is only about damages. So when they’re allowing for an amount to compensate you for your pain and suffering, if you’ve shown emotional injuries, you read this charge in addition to it. And this charge basically says mental suffering, emotional, and psychological injuries, and any physical consequences from the emotional distress caused by the defendant. So if you’re in a car crash, you can sue for the emotional distress, the fact that you’re having trouble sleeping, you’re worried, you have anxiety, you’re scared to get in a car now, but you could also sue for any physical consequences.
So if the doctor says, “Hey, because he’s so distraught over this car crash, he’s now having heart palpitations, or he is having some kind of a physical consequence,” that can go into 2:284. And then the other thing people ask about is worker’s compensation because they say, “Well, how is worker’s compensation? What if I get hurt at work, can I recover?” And the answer is, “Yes, you can.” Purely mental injuries are compensable under the worker’s compensation scheme, they have to be work-related, meaning they were in the course and scope of employment. And what that basically means is you had the emotional injury while performing your job, and number two, it could build up over time, but it has to be due to bad or adverse work conditions that led to the emotional distress.
The gradual one is hard to prove, it’s not easy, but it can be proven. And the stress has to be above average. So it has to be greater stress than all the other employees in your company go through on a daily basis because if it’s the same stress, it’s not enough. It has to be abnormal because now you’re bringing a worker’s compensation claim only due to emotional injury. So it has to be abnormal. And there are certain actions on the part of the employer, on the boss, that are protected. And what that basically means is they cannot be sued for these actions. And they include making personnel decisions because they’re the employers, they can make personnel decisions. Basically, it’s their team, they could decide, “Hey, how do I want to organize my team?” They could promote someone, demote someone. They can transfer someone. They could take disciplinary action and they can fire someone, terminate them. Those are all protected actions.
So you can’t have a worker’s comp case based on that. But if it’s an unprotected action and it causes abnormal stress, then you can. And purely mental injuries are compensable under the worker’s compensation system in New York. So I hope this has been helpful. This is just a little bit of a rundown. And I wanted to talk about one other thing because there’s a new book out that I’m reading. It’s a really excellent book. It’s called Damages Evolving. It’s by a jury consultant, David Ball, and also by some trial attorneys, Artemis Malekpour, she works with David Ball, and also by Nick and Courtney Rowley, who are part of the Trial By Human. Actually, Nick and Courtney, they started the Trial By Human and she has a Trial By Woman section where they teach a lot of these topics that I’m talking about like telling the client’s human story, things like that.
So they have a chapter in here and it’s called flashpoints, a very interesting chapter. Actually, all of the authors, all of the people I just named, wrote this particular chapter, it’s chapter nine. And they talk about flashpoints. And what they basically talk about is that flashpoints are things that are similar, right? They’re things that your client suffered, but they are also things that kind of draw out empathy, and then the jurors will also not want to deal with that, for example, humiliation, right? Humiliation, or a fear of a future injury. If you have emotional distress, you might fear a future injury and you don’t want that to happen again. That’s why if you got into a bad car crash, you don’t want to be a passenger or a driver of a car because you’re scared it will happen again. And that is actually a very high flashpoint, a high empathy because people can relate to it, right?
So they give you examples of how to argue this. And one of them is also shame and humiliation. Somebody could feel a lot of shame after an accident, or they could feel shame because they are severely and permanently injured. Let’s say somebody is a breadwinner and they are the head of the household and they feed the entire family. Now they had a spinal fusion, now they can’t work. They feel shame. They feel like I’m now a burden to my family, to my kids, to my wife. And maybe I was supporting other people like my sister. Now, I feel humiliated. And that’s something that the jurors can very, very much empathize with and then allow for much higher verdicts. So this is a great point about how emotional injuries can be used.
And one of the other things that they talk about in another chapter is actually the fact that the trial itself can be humiliating or the fact that you have to suffer through the trial. The only reason, a lot of the times, that a plaintiff has to suffer through a trial is because the defendant won’t make a fair and reasonable offer, right? They’re just being cheap. They’re nickeling and diming you, and then they’re forcing you to go through a trial, forcing you to relive and rehash all of these horrible memories of how the traumatic injury occurred and of all your medical care, and that could lead to emotional distress like PTSD. So they have very innovative ways to bring it up. I’m reading the book now, I really like it. I’m going to maybe do a few more videos about it in the future.
So I hope this has been helpful. This is how you can recover for emotional injuries after any type of personal injury, like a slip and fall, a car crash. The most important thing is to document everything, keep a diary or a journal. Don’t live with the injury in silence. Go to a healthcare practitioner, whether it’s a psychiatrist, psychologist, therapist. Do it in person, do it over Zoom, document all that. Reach out to witnesses, especially independent witnesses like neighbors, coworkers, people that could tell your story, who you were before the accident, and how your life has changed into who you are now. And then with those things, you’d have a really strong case because you have the medical component of it being diagnosed, you have the actual journals of going through it and evidence that you have been going through it with the diaries, and then you also have other people that are coming to court giving depositions or giving trial testimony, sometimes as quick as five or 10 minutes, but these other people are conveying your story.
They’re explaining how this emotional, psychological distress, mental anguish has changed you, right? And that’s very, very powerful. I can’t stress that enough. Okay. I hope this has been helpful. Let us know what questions you have and we are here for you. Please like and subscribe to our channel so we can continue making videos for you. And you could always text me if you have a question. I’d be happy to text with you or get on a call to give you a free consultation. Okay. Have a great day, everyone. Enjoy the weekend. And we will talk to you very soon.
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