Those who witnessed or soon learned of the injury may seek damages for emotional distress resulting fom the traumatic experience of either witnessing the injury or learning of it. Such claims are referred to as claims for "indirect infliction of emotional distress because they are asserted by bystanders who suffer emotional injury indirectly due to the direct physical injury to another.
The distress in such cases is often both foreseeable and severed. Thus, the plaintiff will frquently be able to establish that the defendant's negligence was an actual and proximate cause of his emotional damages.
Many courts have held that defendants owe no duty to avoid inflicting emotional distress on bystanders, or only owe such a duty in very limited circumstances.
The very foreseeability of such distress argues for restraint. Every victim who suffers negligent physical injury, a number of bystanders may suffer emotional distress.
It woud be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured as well as his friedns.
Courts are reluctant to impose a duty to persons who have no relationship to the defendant.
Judtes are justifiably concerned about the impact that creating a duty will have on the administration of justice. Recognition of indirect infliction claims could clog the courts with suits over trivial unpleasantries better dealt with by "a certain toughening of the mental hide".
In addition, courts have feared the specter of fraudulent claims.
Many courts have created a duty to avoid inflicting emotional distress, at least in limited circumstances.
The efforts of courts to limit indirect infliction claims has led to tourtured line-drawing, evasive distinctions and some of the least intellectually defensible doctrin in the annals of tort law.
Recovery for emotional distress was proper if the plaintiff also suffered physical injury, became known as the "impact rule" Emotional distress damages were often described as "parasitic".
Some allow a bystander to recover for emotional distress if he was in the "zone of danger".
The Dillon Rule: defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.
Dillon rule factors:
1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident as contrasted with learning of the accident from others after its occurrance.
3. whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The Dillion court did not hold that all three criteria must be satisfied to allow recovery. Rather, it suggested that they were relevant factors in the foreseeability analysis. However, the california supreme court subsequently held that each of the Dillion factors must be satisfied to support recovery for indirect infliction.
Some California courts have allowed recovery in indirect infliction cases that don't meet the Dillion standards if the defendant owed a "direct" duty to the bystander.
Some courts have required that the direct victim suffer serious injuries if bystanders are to claim for indirect infliction.
In the same way that skeptical courts have turned the impact requirement into a token, they have eviscerated the "resulting physical injury" requirement by finding vague complaints sufficient.
These are still claims for negligence and that means that all four other elements of a negligence claim must be proved to recover.
Some courts that apply the zone-of-danger or Dillon approaches to indirect infliction claims also require that the plaintiff suffer some physical symptoms as a result of the emotional distress caused by the defendant's conduct.
Some require the plaintiff to prove "serious" or "severe" distress in order to recover.
Others require expert testimony to establish the existence of the distress.
Some cases have refused recovery, even if the distress is genuine, unless the direct victim of the accident suffers serious injury.
Several courts allow indirect plaintiffs to recover if they prove that they suffered objective symptoms of a physical injury or psychic disability as a result of the distress suffered from witnessing injury to the direct victim, without meeting the Dillion or zone-of-danger standards.
The trauma of witnessing a horrific event or injury, which gives rise to a claim for indirect infliction of emotional distress.
The impact of personally observing the injury producing event distinguishes the plaintiff's resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.
Most courts do not allow emotional distress claims for such general grief and suffering of third parties.
Indirect infliction claims are based on the sudden shock of witnessing injury, factors like those cited in Dillon, which emphasize proximity to the traumatic events themselves, make sense as limiting factors. Proximity to the accidentm, actually witnessing it, and being closely related to the victim all tend to increase the traumatic impact of witnessing serious injury. By contrast, liability has usually been denied where relatives learn of an injury at a distance, or even observe an injured family member after the fact. Similarly, where relatives of a direct victim suffer emotional distress, but the victim has not suffered a traumatic accident, recovery is usually denied.
A misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite to recovery.
Loss of Consortium: When one person suffers physical injury due to a defendant's negligence, relatives of the victim will also suffer a third type of emotional damage. "Loss of consortium." This term refers to the impairment of a relative's opportunity to relate to the party directly injured by the defendant.
The injury may interfere drastically with an injured party's ability to relate to his/her spouse. The injury may intefere with recreational activites the couple shared, the division of labor within the household, the sexual society they shared, and the comfort, affection, advice and moral support that ideally flow from marriage. These associated losses, the constellation of companionship, dependence, reliance, affection, sharing and aid which derife from the marital relationship are generally referred to as "loss of consortium" or "loss of society".
Like indirect infliction, loss of consortium compensates an emotional loss to one party due to a direct injury to another.
Loss of consortium does not stem from a sudden traumatic experience, but from the impairment over a period of time - perhaps years or decades - fo the opportunity to relate to the injured spouse.
Loss of consortium differs subtly from grief and sadness. Loss of consortium compensates for the inability to relate to the direct victim, not for general feelings of sadness or empathy for them.
In theory, a jury should consider only the interference with a relationship in determining consortium damages.
I most states today, both spouses have a right to full recovery for loss of consortium due to injury to the other.
Since the broadening of spousal consortium rights, some states have allowed claims by parents for loss of "filial consortium" when their child is injured. Many courts, however, have rejected such claims. There is a similar split of authority on claims for loss of consortium brought by children whose parents have been injured by a tortfeasor.
The majority of states restrict consortium recovery to spouses only.
It is very doubtful that recovery would be allowed to non-family members.
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