When a person is bitten by a dog, it is presumed that the victim suffered emotional distress to some degree. One is not required to separately prove a case of emotional distress when physically injured.
When someone suffers emotional distress because of seeing another person bitten by a dog, a legal claim for emotional distress is possible. The requirements for winning the case are different from state to state. Generally the states fall into 3 groups when it comes to those prerequisites. One group requires that the victim prove he had physical symptoms; another requires proof that the victim was within the zone of danger, meaning that he also could have been attacked; the third group requires that the victim saw or heard the injury take place at the moment it happened.
In all 3 groups, the emotional distress victim has to prove an emotional reaction that was extreme and severe. There are states in the second group that require proof of a bodily injury (see, for example, the brief about emotional distress claims in Illinois by Attorney Kevin Caplis). In the third group, the emotional distress victim has to be a closely related family members such as a sibling or parent.
Now, that’s the legal theory. In practice, the theory is hard to use. Juries do not like emotional distress cases; such cases have no drama to them when the trial takes place years after an accident, and the victims often sound like they are whining. The only way to win such a claim is to have a lot of visits over a significant period of time, with copious forensic testing that eliminates malingerers.
Emotional distress cases are extremely hard on the victims because the defendants are entitled to freely explore the victims’ entire “emotional history” going back decades. Defendants also get into the victims’ medical history because, after all, an emotional problem can result from drug abuse, alcohol abuse, accidents, medications, etc. Any prior psychological problem gets the blame for what the victim is currently experiencing.
Additionally, the victim’s circumstances in life are scrutinized as well. The defense looks into possible problems at work, with neighbors and with family members, and marital problems. After all, all of these are depressing. In one case handled by Attorney Kenneth M. Phillips, the author of Dog Bite Law, the claim for emotional distress was fine except for the fact that the victim (a child) did not know he was adopted. When the defense found this out, they threatened to reveal it to the child, and so his parents decided to drop his emotional distress case.
Mr. Phillips reports that he has had luck with these claims only where the circumstances have been very, very extreme, and the mental damages have been extremely clear. For example, the mom who had to be confined in a mental hospital 5 separate times after a dog bit off her 18- month-old infant’s nose; the CEO whose IQ dropped by 75 points and whose job was on the line after she was repeatedly attacked by Rottweilers living in the adjacent townhouse.
If one believes that a family member is going to bring a claim for emotional distress, be careful with the photographs of the dog bite victim and the emotional distress victim. In one case, the mother of a dog bite victim was struggling to give her child emotional support even as the mom was falling apart psychologically. Nevertheless, when photographs were taken of the child and her mother, the latter was seen smiling and looking quite gorgeous. The explanation was that she was doing her best to minimize her child’s suffering, which was a perfectly understandable goal. Nevertheless, Mr. Phillips advised the woman’s husband to begin taking photos “that show her in her casual moments, not her dressed-up ones, and confirm that her life is falling apart.”
Mr. Phillips says, “Essentially, I hate emotional distress cases. They are demeaning to the victims, for sure. If appropriate, I fight like crazy to win them, but only where there is a great deal of support from the psychologist/psychiatrist, and the emotional distress victim never had psychological problems or any other issues (like the death of a parent or loss of a job) that his reaction can be blamed on.”