Plaintiffs asserting claims for negligent infliction of emotional distress must establish that they were owed a duty by a defendant, that such duty was breached and, because of the breach, they were exposed to an unreasonable risk of bodily injury or death. In New York, the general rule is that bystanders are not owed a duty and cannot assert such a claim; however, New York recognizes an exception to this principle: the “zone of danger” rule. The exception is premised on the concept that the defendant breached a duty owed to the plaintiff.
Where a defendant’s [negligent conduct creates] an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries.1
Although the rule is commonly associated with automobile accidents, claims have been sustained in cases involving house fires, assaults and elevator accidents. These non-auto claims are the subject of this article.
Recognition of the Rule
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