Parents Claim Distress from 'Reckless' Haircut
The parents of a Mescalero Apache girl who was
allegedly injured by having her hair cut on the set of a TV
miniseries may not have a case for emotional distress damages unless
they actually witnessed the "injury-producing event."
An unnamed stylist took the scissors to
Christina Ponce, then 8, while she was working as an extra on
TNT's "Into the West," leaving her looking like a "male Indian
child," her parents claim in a federal suit filed in Albuquerque,
N.M.
The haircut was "in reckless violation of and total insensitivity to
the religious customs and beliefs of Plaintiffs," the
complaint says, because, according to
tribal tradition, "an Apache maiden cannot cut her hair until the
Coming of Age ceremony which is held after the child reaches
puberty."
"Basically, this is a bar mitzvah for female Indian children,"
plaintiffs' attorney J. Robert Beauvais
(Ruidoso, N.M.)
tells ON POINT.
Danny and Tina
Ponce seek $250,000 in emotional distress damages for their
daughter from Turner Films. More
problematic is their claim that they "had a conscious [sic] sensory
perception of the injury to their daughter sufficient to constitute
negligent infliction of emotional distress."
The New Mexico Supreme Court has
recognized a bystander claim for NIED where, among other things,
"the plaintiff suffered severe shock from the contemporaneous
sensory perception of the accident." Folz v. State, 797 P.2d
246 (1990).
But in
Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (1998), the
court said the bystander must "observe more than the victim's
injury," ruling that
to prove contemporary sensory perception of the accident, the bystander must observe a sudden, traumatic, injury-producing event at the time of its occurrence or soon after.
Neither of Christina Ponce's parents were present when she had the haircut. But Beauvais says the mother, who was elsewhere on the set, "became aware of it very shortly" thereafter when Christina, "extremely upset," came to her.
The combination of "temporal proximity" and the trauma of seeing her daughter "still suffering" from the injury means "there's certainly an argument" for the mother's NIED claim, Beauvais says.
3/20/06