Zone of Danger: 5th Circuit Leaves Open the Door for Purely Emotional Injury

The availability of emotional injury claims in maritime law is unsettled. As it stands, recovery of purely emotional injuries requires proof of an attendant physical injury—or at least emotional injuries that present with concurrent physical symptoms. But a recent decision from the 5th Circuit potentially expands the scope of cognizable emotional injury claims.

In In re Deepwater Horizon, the 5th Circuit held open the possibility of emotional injury where the plaintiff satisfies the “zone of danger” test. As articulated by the court, the zone of danger test requires that the plaintiff show that (1) they subjectively feared that they were in danger, (2) that they were objectively at immediate risk of danger, and (3) must allege that they could not leave the dangerous area.

In In re Deepwater Horizon, fishermen-plaintiffs voluntarily entered the zone of danger when they tried to assist in the rescue efforts at the platform. There was no dispute as to the first element and the fisherman received burned faces, singed hair, and scratches and bruises for their efforts. They argued that the intense heat, small explosions, and noises indicated that they were “objectively” in the zone of danger. The court held that this was insufficient. According to the court, the plaintiffs had to be “in the same location as the accident and face immediate risk of harm” to be within the “zone of danger.” Furthermore, since the fishermen could move their boat to avoid the heat, they could leave the dangerous area.

Despite the outcome, the close analysis of the test and tenor of the opinion indicate that formal adoption of the zone of injury test by the 5th Circuit is on the horizon.

The case is In re Deepwater Horizon, No. 20-30300, 2021 WL 96168 (5th Cir. Jan. 11, 2021).

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