Liability for a Bystander’s Emotional Distress

In some cases, a bystander may recover for negligent infliction of emotional distress, even though the bystander was not directly involved in an accident. For example, a wife is walking along a city street. By chance, she sees her husband’s car approaching. A drunk driver comes tearing around a corner and smashes into the husband’s car. The impact is such that the wife is sure that her husband did not survive the accident. In fact, the husband survives the accident with minor injuries. The wife files a personal injury action against the drunk driver to recover for the emotional distress she has experienced due to witnessing the accident.

The scenario above is an example of a “bystander case.” (The wife is the bystander.) In order to recover in a bystander case, the bystander must have:

(1) witnessed a serious accident involving a close relative (e.g., a husband, wife, parent, or child); and

(2) suffered very serious emotional trauma as a result of witnessing the accident.

All states require a bystander to prove the two elements above in order to recover for negligent infliction of emotional distress. There are additional requirements, and they vary by state. In some states, a bystander cannot recover unless he or she was within the “zone of danger,” i.e., the bystander must have been so close to the accident that he or she feared for his or her own safety. In other states, a bystander cannot recover unless the defendant knew or should have known that the injured person’s close relative would be at the scene of the accident. In a few states, the bystander cannot recover unless he or she was physically injured or physically impacted in the accident.

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