Can I sue a drunk driver for causing me and my children mental anguish? 17 Answers as of November 30, 2011

You can always file a lawsuit; doing so doesn't mean you'll win. In Virginia, mental anguish as a basis for a claim is only allowed if there is an accompanying physical injury. Thus, you cannot make a claim for your anguish over your daughters. Your daughters' minor injuries, as you describe, then, probably would not support a claim for their mental anguish. Typically, in auto accidents, claims consist of compensation for physical injuries, the pain and suffering accompanying those injuries, reimbursement for medical bills, and in the case of individuals who are working, lost income if the accident causes them to miss time from work. In drunk driving cases, if the drunk's blood alcohol level (BAC) is .15 or more, and you can prove the drunk knew or should have known he/she was going to drive after drinking, then you are eligible for punitive damages in addition to the compensation damages I described. To answer your question, given the minor injuries, it does not seem there will be significant money for your daughters. Make the claim to the drunk's insurer, by all means. Just appreciate that the law isn't going to support significant money damages.

You can only recover financially from an injury if you have what is considered a "serious injury" as that term is defined by law. This includes death, miscarriage, fractures, a total disability that lasts 90 days or a permanent partial disability. The injury must be confirmed by objective medical proof such as an x-ray, MRI, CT scan or nerve conduction study. Once the "serious injury" threshold has been reached, mental anguish can become part of the measure of damages, but standing alone does not constitute an injury.

You can but I doubt a jury would give you much for emotional distress. That alone isn't worth much. A jury wants to see physical injury.

You can sue anyone. If your children were injured, they absolutely to have a right of action. You also have a right of action under the Family Medical Expense Act. If the injuries to your children were minor, their recovery will be small and your recovery for "mental anguish" will be non-existent. There are no windfalls.

No, forget about "mental anguish". As part of your claim for damages in behalf of your children, the correct term recognized under the law governing damages would be PAIN and SUFFERING allegedly incurred by your children as a result of the accident and not their mental anguish. Furthermore, your particular mental anguish would be irrelevant in this suit and not recoverable in damages since you were apparently not even in the vehicle when the accident occurred.

Every case is different. To sue somebody for personal injuries, you usually have the burden of proving that the negligence of the person you are suing caused the injuries alleged. There have been quite a few cases where people explored the limits of just how close the causal relationship must be and just how much proof by physical symptoms it takes to prove emotional distress. See, for example, HEGEL v. McMAHON, 136 Wn.2d 122 (1998) (you can read cases at the MRSC website, http://www.mrsc.org/wa/courts/index_dtSearch.html). There, the court said "a family member may recover for emotional distress caused by observing an injured relative at the scene of an accident after its occurrence and before there is substantial change in the relative's condition or location". A minor child cannot be a party to a civil lawsuit, so the parent or guardian has to be the named party on behalf of the child. In the circumstances you describe, it appears that your children would have solid claims, but yours would be a long shot.