In New York, the mechanism for a bystander-plaintiff to recover damages for emotional distress is the “zone of danger” rule. To recover under a “zone of danger” theory, a plaintiff must show: (1) the defendant’s conduct threatened the plaintiff with an unreasonable risk of bodily injury or death; (2) the plaintiff suffered an emotional injury from viewing or contemporaneously observing the serious injury or death of a third-party victim resulting from defendant’s conduct; and (3) the plaintiff and third-party victim are immediate family members. While the “zone of danger” rule is often associated with automobile accidents, this article analyzes how the rule is applied in non-automobile situations.

The Modern Rule

The “zone of danger” rule was initially introduced by the New York Court of Appeals in Bovsun v. Sanperi, 461 N.E.2d 843, 847-48 (N.Y. 1984). While stopped on the side of the road, the Bovsuns’ vehicle was struck by the defendant’s car, pinning Mr. Bovsun between the two vehicles. Ms. Bovsun and their daughter were inside the car at the time of the incident. The court determined the mother and daughter sufficiently established a claim for emotional distress finding that, as a result of the defendant’s negligence, they were at risk of serious physical harm; the victim was a member of their immediate family; and they were instantaneously aware of the victim’s injuries.

Requirement One: Plaintiff Threatened With Serious Bodily Injury or Death

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