Smith v. Kings Entertainment Co. , 99 Ohio App. 3d 1 ( 1994 )

I respectfully disagree with the majority's interpretation ofPaugh v. Hanks. In order to recover for severe emotional distress, Paugh considers three factors significant. They are proximity to the accident, whether the plaintiff personally observed what happened, and whether the plaintiff and victim were closely related. Appellee concedes the plaintiff in this case met the first two. However, the Supreme Court made it absolutely clear in its decision that these factors are only that: factors to be considered, not prerequisites to recovery. In the court's own words, the term factor "should be underscored to alleviate any misconception that such factors are requirements," and "the mere failure of a plaintiff to satisfy all of them should not preclude an aggrieved party from recovery." Id. at 79, 6 OBR at 120,451 N.E.2d at 766.

Meredith Smith, then twenty-one years old, not only saw her friend Eddie Haithcoat electrocuted in a malfunctioning fountain of water, but had, in fact, exhorted him to jump in to rescue another member of their group who had apparently fallen into the water. As Eddie was screaming, a security guard rushed over to help. Meredith begged him not to jump in, but he did. Haithcoat and the security guard were killed. The fact that she suffered emotional injuries that are both severe and debilitating is not challenged at this point in the proceedings.

The fact that Smith and Haithcoat were only friends has, to me, a bearing only on the extent of her damages, not on her right to recover. The jury can easily be instructed that that is one factor they may consider when determining her damages. I believe this is consistent with the flexible case-by-case approach suggested in Paugh. I would reverse the entry of summary judgment.