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IN RE AIR CRASH DISASTER NEAR CHICAGO

November 4, 1980

IN RE AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS ON MAY 25, 1979. KATHLEEN DEYOUNG, MOTHER AND PERSONAL REPRESENTATIVE OF RHONDA ANN DEYOUNG, DECEASED, PLAINTIFF,
v.
MCDONNELL DOUGLAS CORPORATION, A CORPORATION, AND AMERICAN AIRLINES, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Robson and Will, Senior District Judges.

MEMORANDUM AND ORDER

The plaintiff filed this wrongful death and survival action to recover damages arising from her daughter's death in the crash of an American Airlines DC-10 passenger jet on May 25, 1979. The plaintiff filed discovery requests seeking information regarding the last moments of flight 191. This discovery is aimed at establishing pain and suffering or psychological injuries allegedly suffered by her daughter prior to her death. Defendants American Airlines, Inc., and McDonnell Douglas Corporation (hereinafter American and MDC) have moved to strike and dismiss or for partial summary judgment on the plaintiff's claims for damages for pre-death pain and suffering of her daughter. They have also moved to quash discovery requests related to these claims. For the reasons hereinafter stated, the motion to strike or dismiss or for summary judgment is granted in part and denied in part.

The Effect of the Parties' Stipulation Regarding Damages

In this case, as in some of the other cases arising from this air crash, the defendants and plaintiff have signed a stipulation regarding liability and compensatory damages. In this stipulation, American and MDC have waived their right to contest liability for compensatory damages and the plaintiff has waived any claim for punitive damages. Both parties now contend that the stipulation precludes the other from maintaining their position regarding pain and suffering damages. The plaintiff claims that American and MDC, by agreeing not to contest their liability for compensatory damages resulting from the crash, have waived any objection to a claim for pain and suffering damages. MDC and American contend that, by waiving all claims other than compensation to survivors, the plaintiff has waived any right to claim damages for conscious pain and suffering.

It has been clear since the stipulation was first discussed that its primary purpose is to remove questions of liability under the wrongful death statutes in exchange for a waiver of a claim for punitive damages from this litigation. During in-court discussion of the stipulation, defendants repeatedly stated that they were reserving the right to contest the standing of individual plaintiffs, the existence of causes of action or damage claims, and similar legal issues. No party ever indicated that it considered the stipulation a waiver of claims for specific items of compensatory damages or conversely of objections to such claims. In light of the discussions had at pretrial conferences concerning the stipulation and its effect, it is clear that the stipulation in and of itself does not preclude plaintiffs' claims for damages for pain and suffering or preclude defendants' objections to such claims.

The Availability of Pain and Suffering Damages
  The present motion concerns only the availability of pain and
suffering damages in an action involving an Illinois decedent.
American refers to the damages in question as "pre-impact fright
and terror." MDC refers to these damages as "psychological
injuries." American and MDC also contend that damages for
post-impact pain and suffering are not recoverable under the
undisputed facts of this accident. Plaintiff refers

to her claim as one for damages for pre-death pain and suffering.
It is clear that all parties are referring to the physical or
mental anguish allegedly suffered by the passengers of flight 191
during the last few moments prior to their deaths. For
convenience, we will refer to the damages in question as simply
"pain and suffering" damages.

All parties apparently concede, and we agree, that Illinois law governs the availability of pain and suffering damages in this action. Cf. In Re Air Crash Disaster Near Chicago, Illinois, MDL 391, 480 F. Supp. 1280 (N.D.Ill. 1979). Prior to 1974, Illinois did not permit recovery for conscious pain and suffering where the injuries resulted in death. In Holton v. Daly, 106 Ill. 131 (1882), the Illinois Supreme Court held that a wrongful death action was the exclusive remedy where death resulted from tortious conduct. In 1974, the Illinois Supreme Court reversed Holton v. Daly, holding that in addition to a wrongful death action, an action for conscious pain and suffering, medical expenses, and loss of earnings could be brought under the Survival Act. Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974). In that case, the decedent was severely burned in an explosion at a service station. Nine days later, he died of his injuries. The court held that the administrator of his estate could recover for his conscious pain and suffering prior to death, as well as compensatory damages for his dependents under the Wrongful Death Act.

Illinois courts have, however, limited claims for pain and suffering to those which are directly connected with a contemporaneous bodily injury. See, e.g., Carlinville National Bank v. Rhoads, 63 Ill.App.3d 502, 20 Ill.Dec. 386, 380 N.E.2d 62 (1st Dist. 1978). These courts have disallowed claims for negligent infliction of emotional distress or mental anguish unless the distress or anguish was caused by bodily injury. See, e.g., Carlinville, supra; City of Chicago v. McLean, 133 Ill. 148, 24 N.E. 527 (1890). In other cases, Illinois courts have denied recovery where negligent behavior caused alarm or fear but no physical injury. See, e.g., Benza v. Shulman Air Freight, 46 Ill. App.3d 521, 5 Ill.Dec. 91, 361 N.E.2d 91 (1st Dist. 1977); Rosenberg v. Packerland Packing Co., 55 Ill.App.3d 959, 13 Ill.Dec. 208, 370 N.E.2d 1235 (1st Dist. 1977).

In the present case, the plaintiff's claims for pain and suffering are really two separate claims. First, she seeks damages for the fright and terror allegedly experienced by her daughter prior to the impact, during the final "roll" towards the ground. Second, she seeks damages for her daughter's possible conscious pain and suffering after the initial impact or injury and before death.

As for her first claim, we conclude that she cannot recover. Since, under Illinois law, an individual can recover for emotional distress or suffering only when the distress is caused by a physical injury, plaintiff cannot recover for the fright and terror her daughter may have experienced in anticipation of physical injury.

The plaintiff argues that this case is distinguishable from Illinois cases which have denied claims for pre-impact suffering because in this case, unlike other cases, physical injury did in fact occur. She asks that we merely extend the time for recovery of pain and suffering damages to include the period immediately prior to an inevitable physical injury. She notes that a similar argument was accepted by the Court of Appeals for the Fifth Circuit in Solomon v. Warren, 540 F.2d 777 (5th Cir. 1977). In that case, a light plane was lost at sea after the pilot radioed that his fuel was low. Neither the plane nor the bodies of the occupants were recovered; consequently there was no evidence as to whether or not the passengers died instantaneously. Nevertheless, the court held that the jury could award pain and suffering damages for the few seconds or minutes prior to the crash even if they found that the passengers died immediately upon impact. As the court stated:

  We are unable to discern any reason based on either
  law or logic for rejecting a claim because in this
  case as to at least

  part of the suffering, this sequence [impact, then
  suffering] was reversed.

Id. at 793. In his dissenting opinion, Judge Gee disagreed, stating:

  [T]o reverse the sequence is to abandon the rationale
  of the impact rule: any compensated mental pain and
  suffering must be caused by a physical impact. The
  airplane crash and the Levins' resulting death were
  not the "but for" cause of whatever anxiety they may
  have suffered prior to their deaths. Their prior
  fears would not have been diminished had the plane
  leveled off at the last moment and avoided disaster
  altogether. This is because the Levins' anxiety for
  their own safety and their children's future well
  being was caused by the anticipation of death, not by
  the actual crash that presumably killed them. It is
  not enough that some impact accompany the ...

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