Trial News

A Massachusetts appellate court has revived a teen’s negligent infliction of emotional distress claim against a property owner that poorly maintained a fence along adjacent train tracks, resulting in her friend being fatally struck by a train. The court held that the plaintiff was also placed in the “zone of danger” by the defendant’s negligence, so her claim was a direct negligence claim against the property owner, reversing the trial court’s dismissal based on failure to meet criteria under the bystander recovery doctrine. The decision clarifies when a crash witness may bring a direct claim for emotional distress, rather than a derivative bystander claim. (Calderon v. Royal Park, LLC, 2019 WL 4266099 (Mass. App. Ct. Sept. 10, 2019).)

Best friends Kiandra Calderon and Jenaira Fuentes, both 13, frequently crossed the Massachusetts Bay Transportation Authority railroad tracks abutting defendant Royal Park’s multi-building apartment complex to access nearby shopping plazas and a high school. Though Royal Park’s property includes a fence between the apartment complex and the train tracks, the fence had large holes and gaps through which children and adults were known to pass. In October 2014, the teens crossed the tracks to access a nearby shopping plaza. When crossing back across the tracks to return home, Jenaira was fatally struck by an MBTA train. Kiandra attempted to perform life saving measures and stayed by her friend as rescue workers tried to save Jenaira.

After Jenaira’s death, Kiandra experienced severe emotional distress, manifesting in physical symptoms including anxiety, depression, sleep issues, food intake issues, and behavioral problems. In March 2016, Kiandra sued Royal Park in Massachusetts Superior Court, alleging violation of the state’s child trespasser statute and negligent infliction of emotional distress. Royal Park moved to dismiss Kiandra’s emotional distress claim based on the insufficiency of her relationship with Jenaira to recover as a bystander to her friend’s death. “Allowing anyone who claims to be a ‘best friend,’ with no further allegations detailing the relationship, would radically expand [the bystander] theory of tort liability well beyond developed case law,” the court said. Although Kiandra was permitted to submit additional evidence about her friendship with Jenaira, the court found the relationship too distant and dismissed the emotional distress claim.

The trial court allowed discovery on Kiandra’s claim under the child trespasser statute, Mass. Gen. Laws §85Q, which provides that a landowner may be held liable for physical harm to a child trespasser when: the landowner knows an artificial condition will involve unreasonable risk of death or serious bodily harm; children do not discover or realize the risk due to their youth; the burden to the landowner to eliminate the danger is slight compared to the risk; and the landowner failed to exercise reasonable care. Royal Park countered that the child trespasser statute does not create a separate cause of action but only establishes a standard of care. It also argued that since the court had already dismissed Kiandra’s emotional distress claim, there was no negligence claim to which the child trespasser standard of care applied. The trial court dismissed on these grounds, and Kiandra appealed.

Agreeing with the trial court that Kiandra’s child trespasser and negligent infliction of emotional distress claims are interdependent, the Massachusetts Appeals Court considered them together. The plaintiff may proceed under either the statute or a common-law negligence claim, the appellate court held, but “either way, the elements to be proved and the available defenses will be the same.” The court added that “the two claims are duplicative, with §85Q providing the standard of care.”

The appellate court then considered whether Kiandra’s underlying negligent infliction of emotional distress claim could be sustained. Royal Park argued that the plaintiff “is not the type of bystander who can recover for her emotional distress,” that it “owed no duty to maintain its fence,” and that its fence “was not the proximate cause” of Kiandra’s injuries. The court disagreed with Royal Park and the trial court labeling Kiandra as a bystander—“one who was never in danger from the defendant’s negligence.” Here, the court said, Kiandra was in the “zone of danger” created by Royal Park’s negligence as she crossed the tracks with her friend. Bystanders who are not within this “zone of danger” must show the defendant’s negligence caused their “substantial physical injury.” However, because Kiandra had been placed “in danger of immediate bodily harm” and “emotional harm result[ed] from the danger” she may bring an independent negligence claim, rather than just a derivative bystander claim, the court held.

The court then considered whether Royal Park owed a duty to Kiandra as a child trespasser injured on land adjacent to the defendant’s property. Under §85Q, the court held, a duty may be owed to a child despite that child being a trespasser and having no “special relationship” with the landowner. In addition, the court found, in some situations a landowner’s duty to exercise reasonable care does not stop abruptly at its property line. Rather, this duty may extend to “related known dangers on adjacent property” where “the defect . . . had a causal link to the adjacent danger.” Here, the plaintiff alleged that Royal Park’s poorly maintained fence “served as an invitation to children to pass through it and onto the adjacent MBTA tracks.”

In reversing, the appellate court concluded that Kiandra adequately alleged her emotional distress claim. The court also held that it is for a jury to decide whether Royal Park’s fence posed an unreasonable risk and whether it was foreseeable that a child might be hurt due to the holes in the fence.

Salem, Mass., attorneys Robert Mazow and Robert Hartigan, who handle pedestrian injury cases, said “the appeals court got this right—the plaintiff was placed in the ‘zone of danger’ by the defendant’s alleged negligence and as a result of watching her best friend get killed by a train, she suffered emotional distress.” They added that the decision likely “will cause attorneys to take a closer look at potential emotional distress cases involving nonrelated parties.”

“Royal Park was aware of the danger of its fence and turned the other way—the result is the death of one child and likely lifelong emotional damage to another. For the defendant to think that someone would not end up on the tracks was naïve,” said Boston personal injury attorney Michael D’Isola. “Defendants should be held responsible for all of the harm that results from their negligence, including emotional distress. But courts now will need to flesh out the boundaries of the ‘zone of danger.’”