If You’re Under Arrest and You See Your Son Get Shot While He’s Evading Arrest Can You Claim IIED?

In Pennsylvania, the answer is “yes.” In the case of Sullivan v. Warminster Township, Carol and Bruce Sullivan brought a lawsuit against Warminster Township on behalf of their son Sean, who had been fatally shot by police on March 31, 2006 when police came to the Sullivan’s home to serve a warrant on Carol for various non-violent misdemeanors. Police called for backup upon learning that Sean was also in the home, as there were also outstanding warrants for his arrest as well. Sean refused to submit to arrest, and eventually attempted to escape through a window in the rear of the house. Sean hit the ground and began running, but was killed when police fired 56 shots. Sean’s mother witnessed this from the police car.

The Sullivans brought a federal lawsuit against the town, the police department and individual officers. One of the claims in the lawsuit was intentional infliction of emotional distress. In interpreting PA law (which had never formally stated that IIED was a viable tort), the federal court was left with the question of whether the tort was available to the Sullivans. The trial court (using 3rd Circuit precedent) adopted the Restatement (Second) of Torts, and held that the claim is available to “parties who witness outrageous conduct directed at close family members” so long as there is evidence of injury.

The question then arose — did Carol Sullivan have evidence of “injury”? The District Court noted that Carol Sullivan had witnessed Sean’s shooting from the police car in which she had been placed after her arrest. The trauma of watching this had caused her to allegedly develop post-traumatic stress disorder as a result. While the town argued that this was not a “physical injury”, as required in the Restatement, the Court disagreed, holding that “injury” is an element of any tort that must be proven with medical evidence. The Court specifically stated, however, that evidence of “physical injury” (as opposed apparently to mere mental trauma) was not required — at least not in the pleading stage. The Sullivan’s IIED claim was allowed to proceed.

Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

http://www.paed.uscourts.gov/documents/opinions/10D0523P.pdf