Negligent infliction of emotional distress: bystander recovery, the zone-of-danger test, and the impact rule

Black-letter propositions

1. 01

   In the absence of physical injury or impact to the plaintiff, damages for emotional distress are recoverable in California by a bystander only if the plaintiff is closely related to the injury victim, is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and suffers emotional distress beyond that anticipated in a disinterested witness.

2. 02

   A mother who did not see or hear the accident that injured her child, and who learned of it from another child and then came to the scene, cannot recover under the California bystander rule because she was not present when the accident occurred.

3. 03

   In New Jersey a bystander plaintiff must show the death or serious physical injury of another caused by the defendant's negligence, a marital or intimate familial relationship with the injured person, observation of the death or injury at the scene of the accident, and resulting severe emotional distress.

4. 04

   Observing the death or serious injury of another while it occurs is an essential element of the New Jersey claim, and the risk of severe emotional distress is present when the plaintiff observes the accident at the scene, so a plaintiff who watched a child suffer and die can recover although she was never at risk of physical harm herself.

5. 05

   Courts limit recovery for negligent infliction of emotional distress through tests such as the physical impact test, the zone of danger test, and the relative bystander test, in part because an emotional injury is easier to fake than a physical injury.

6. 06

   Under the zone of danger test, recovery for emotional injury is limited to plaintiffs who either sustain a physical impact as a result of the defendant's negligence or are placed in immediate risk of physical harm by that negligence, so those within the zone of danger of physical impact can recover for fright and those outside it cannot.

7. 07

   The zone of danger test was adopted for claims by railroad employees under the Federal Employers' Liability Act as the common-law test with historical support and continuing vitality, and it was followed by 14 jurisdictions at the time.

8. 08

   The relative bystander test, first stated in Dillon v. Legg, rejected the zone of danger test and asked whether the defendant could reasonably have foreseen the plaintiff's distress, considering proximity, direct observation, and the closeness of the relationship.

9. 09

   A defendant's duty to avoid creating a stressful work environment for employees is not recognized under the zone of danger test for emotional injury claims by railroad employees.

10. 10

    Proximity to the accident scene bears on the closeness of the emotional bond and the likelihood of witnessing the event, but a plaintiff who must observe the accident necessarily satisfies a requirement of proximity.

Use this attack sequence under time

Common wrong turns

• Arriving at the scene after the accident does not satisfy the California presence-and-awareness requirement.
• A bystander in New Jersey need not have been at risk of harm but must observe the death or serious injury.
• The zone of danger test requires immediate risk of physical harm to the plaintiff, and a bystander watching a relative outside the zone cannot recover under it.
• Tests for negligent infliction of emotional distress differ among states, so the rule to apply depends on the jurisdiction.

Worked example

A mother, in her kitchen, hears a crash outside and runs out to find her child lying injured on the road after a driver struck him. She did not see the impact and was never in the path of the car.

Practice this topic

The bystander rules

Thing v. La Chusa held that, absent physical injury or impact to the plaintiff, damages for emotional distress are recoverable only if the plaintiff is closely related to the injury victim, is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and as a result suffers emotional distress beyond that anticipated in a disinterested witness, and it denied recovery to a mother who neither saw nor heard the accident that struck her son but came to the scene after being told.

Portee v. Jaffee held that a mother who watched her young son suffer a slow death after becoming trapped in an elevator could recover for negligent infliction of emotional distress although she was not herself at risk, and it set out that the plaintiff must show the death or serious injury of another caused by the defendant's negligence, a marital or intimate familial relationship, observation of the death or injury at the scene, and resulting severe emotional distress, with observation of the injury while it occurs an essential element.

The zone of danger test

Consolidated Rail Corp. v. Gottshall described the physical impact, zone of danger, and relative bystander tests as the common-law limits on recovery, adopted the zone of danger test for negligent infliction of emotional distress claims under the Federal Employers' Liability Act, which limits recovery to plaintiffs who sustain a physical impact from the defendant's negligence or are placed in immediate risk of physical impact by it, and rejected a duty to avoid creating a stressful work environment.

The Court explained that the relative bystander test originated in Dillon v. Legg, where the California court rejected the zone of danger test and made recovery turn largely on whether the defendant could reasonably have foreseen the plaintiff's distress, and that the zone of danger test was followed in 14 jurisdictions.

The Dillon factors

Dillon v. Legg held that, in deciding whether a defendant should reasonably foresee injury to a plaintiff who suffers shock from an accident to another, courts consider whether the plaintiff was located near the scene of the accident, whether the shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident as opposed to learning of it from others after its occurrence, and whether the plaintiff and the victim were closely related, and it reasoned that a defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than that a stranger witness will.

Frequently asked questions