Black-letter propositions
- 01
States take three main approaches to negligent infliction of emotional distress: most allow it when the distress was reasonably foreseeable, some require the plaintiff to have been in the zone of danger, and a few require some physical injury.
- 02
The zone of danger test, which the Supreme Court adopted for claims under the Federal Employers' Liability Act in Gottshall, limits recovery to plaintiffs who sustain a physical impact from the defendant's negligence or are placed in immediate risk of physical impact.
- 03
Dillon v. Legg lets a bystander outside the zone of danger recover if distress was foreseeable, weighing whether she was near the scene, whether the shock came from sensory and contemporaneous observance, and whether she and the victim were closely related.
- 04
Thing v. La Chusa narrows Dillon to a plaintiff who is closely related to the victim, is present at the scene when the injury-producing event occurs and is then aware that it is causing injury, and suffers serious distress beyond that of a disinterested witness.
- 05
Wrongful death is a statutory claim brought by listed survivors, such as a spouse and children, or by the personal representative for them, for their own losses; a survival claim is the decedent's own cause of action, which passes to the estate.
- 06
A spouse may recover for loss of consortium when the other spouse is injured, but a child generally cannot recover for loss of a parent's consortium or a parent for a child's, although survivors in a death case may recover for loss of society under the wrongful death statute.
Use this attack sequence under time
Frame the issue
Identify the claim: distress alone, death of the victim, or loss of a relationship after a nonfatal injury.
Resolve the next checkpoint
For bystander distress, apply the jurisdiction's test: zone of danger, Dillon foreseeability, or Thing's three requirements.
Resolve the next checkpoint
For a death, separate the survivors' wrongful death claim from the decedent's survival claim, and note who owns each.
Finish the conclusion
For consortium, ask who was hurt, who is suing, and whether the jurisdiction recognizes that relationship.
Common wrong turns
- Being closely related to the victim is not enough by itself; most tests also require presence and contemporaneous perception.
- A wrongful death claim compensates survivors, while a survival claim recovers the decedent's own pre-death losses.
- Recognizing a spouse's consortium claim does not mean that children or parents may sue for consortium after a nonfatal injury.
Worked example
A mother in her kitchen hears a crash outside, runs to the street, and finds her child lying injured after a driver's negligence, but she did not see or hear the driver hit the child.
Under Thing v. La Chusa, the mother was not present at the scene when the injury-producing event occurred and was not then aware that it was causing injury, so she cannot recover as a bystander. The result is the same in a zone of danger state, because she was never at risk of impact.
Practice this topic
Bystander emotional distress
Cornell's Wex entry says states differ greatly on negligent infliction of emotional distress. Most allow the claim when the defendant's action was reasonably foreseeable to cause the distress. Some allow it only in a zone of danger, and a few require at least some physical injury to the plaintiff.
The Supreme Court adopted the zone of danger test for FELA claims in Consolidated Rail Corporation v. Gottshall. It limits recovery for emotional injury to plaintiffs who either sustain a physical impact from the defendant's negligence or are placed in immediate risk of physical impact. In Dillon v. Legg, the California Supreme Court listed three factors for foreseeability: whether the plaintiff was near the scene, whether the shock came from sensory and contemporaneous observance of the accident, and whether plaintiff and victim were closely related. In Thing v. La Chusa the court turned those factors into requirements. The plaintiff must be closely related to the victim, present at the scene when the injury-producing event occurs and then aware that it is causing injury, and must suffer serious distress beyond that of a disinterested witness. Maria Thing arrived after her son was struck, having neither seen nor heard it, and the court held that she could not recover.
Death claims: wrongful death and survival
California Code of Civil Procedure section 377.60 shows how a wrongful death statute works. The claim may be brought by the decedent's surviving spouse, domestic partner, children and issue of deceased children, or by others who would take by intestacy if there is no surviving issue, and by certain dependents. The decedent's personal representative may bring it on their behalf.
A survival claim is different. Section 377.30 says a cause of action that survives the death of the person entitled to sue passes to the decedent's successor in interest and may be brought by the personal representative. Section 377.34 limits the damages to the loss or damage the decedent sustained before death, and states that they do not include pain, suffering or disfigurement, subject to a temporary exception for certain actions. The Multistate Bar Examination's outline tells examinees to assume that survival actions and claims for wrongful death are available, so the exam questions turn on who may sue and for what.
Loss of consortium
In Rodriguez v. Bethlehem Steel Corp., the California Supreme Court overruled its earlier rule and recognized a cause of action by a married person for loss of consortium when the spouse is negligently injured. The court described consortium as the loss of conjugal fellowship and sexual relations, and said California should join the large and growing majority of jurisdictions that recognize the claim.
Two years later, in Borer v. American Airlines, the court held that a child cannot maintain a cause of action for loss of parental consortium, and in the companion case Baxter v. Superior Court, that a parent cannot sue for loss of a child's consortium. The court also explained that children may recover for loss of a parent's affection and society in a wrongful death action, and it found a rational basis for that distinction.
Frequently asked questions
What is the controlling rule for emotional distress, wrongful death, survival, and loss of consortium?+
Identify the type of claim, state the jurisdiction's test or the statute, and apply each requirement to the plaintiff's location, awareness, and relationship to the victim.
What are the three main approaches to negligent infliction of emotional distress?+
Foreseeability, the zone of danger test, and a physical-injury requirement, according to Cornell's Wex entry, with states differing on which they follow.
What does the zone of danger test require?+
Physical impact from the defendant's negligence, or immediate risk of physical impact, as the Supreme Court held for FELA claims in Consolidated Rail v. Gottshall.
Why did the mother lose in Thing v. La Chusa?+
She neither saw nor heard the accident and reached the scene afterward, so she was not present and aware when the injury-producing event occurred.
Who may bring a wrongful death claim in California?+
The survivors listed in Code of Civil Procedure section 377.60, such as the spouse and children, or the personal representative on their behalf.
Can a child recover for loss of a parent's consortium after a nonfatal injury?+
Not under Borer v. American Airlines, where the California Supreme Court held that a child cannot maintain that claim.