Analyzing Elements of Zone of Danger Claim
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the "zone-of danger" rule, under which New York law permits a cause of action to be brought for damages arising from the negligent infliction of emotional distress to a bystander who is exposed to "an unreasonable risk of bodily harm" in an accident when he or she witnesses a family member being injured or killed.
March 23, 2015 at 10:00 PM
13 minute read
The courts traditionally have been reluctant to impose liability for the emotional distress that may result from the observation of harm to a third person. However, pursuant to the “zone-of danger” rule articulated by the Court of Appeals in Bovsun v. Sanperi, 61 N.Y.2d 219 (1984), New York law permits a cause of action to be brought for damages arising from the negligent infliction of emotional distress to a bystander who is in the “zone of danger” when a family member (as strictly defined) is injured or killed. It is a cause of action that must be separately pleaded and charged to the jury at the time of trial.
The courts require strict adherence to the criteria articulated in Bovsun:
[W]here a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family—assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death.1
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