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Should the Concept of the Duty of Tort be Extended to People Who Witnessed an Accident?


There are two appeals or two cases before the court.

On 24 May 1975, a family were riding in their station wagon but had to stop at the side of the Southern State Parkway in Nassau County due to mechanical difficulties. The father and driver, alighted from the vehicle, went around to the rear, and leaned inside the open tailgate window. The wife remained seated in the front passenger seat, and their daughter was in the rear seat. At this point, the station wagon was struck in the rear by an automobile owned by defendant-one and driven by defendant-two. The father was seriously injured in the car accidentwhen he was pinned between the two vehicles. The mother and daughter were thrown about the station wagon by the force of the impact but suffered less serious physical injuries than the father. Although neither mother nor daughter actually saw the car strike their station wagon as they were facing forward or to the side, both were instantly aware of the impact and the fact that the father must have been injured and each thereafter immediately observed their seriously injured husband and father.

While on 3 June 1978, a father and a mother were riding with their two infant daughters in the family car along a roadway in the Mid-Westchester Mall in Cortlandt, New York. A New York Injury Lawyer the father was driving the vehicle, his wife, was in the front passenger seat with their one-year-old daughter in her lap, and their other four-year-old daughter was also seated in the car. Their car was struck by an automobile owned by another defendant-one and driven by another defendant-two, allegedly, in a reckless manner and at an excessive speed (car accident or auto accident). The mother suffered a fractured clavicle in the collision, the father sustained a broken finger, and the four-year-old daughter suffered abdominal injuries. Their one-year-old daughter died a few hours after the accident as a result of her various, severe injuries, alleged in the complaint to have been observed by plaintiffs.

The two appeals pose the same question of law–whether in addition to or apart from other damages to which a plaintiff may be entitled in consequence of the negligence of the defendant, he may recover for emotional distress occasioned by his witnessing injury (personal injury) or death (wrongful death) caused by the defendant’s conduct to a member of the plaintiff’s immediate family.

Should the concept of duty in tort be extended to third persons who do not sustain any physical impact in the accident or fear for their own safety?

A Brooklyn Personal Injury Lawyer said traditionally, courts have been reluctant to recognize any liability for the mental distress which may result from the observation of a third person’s peril or harm; that liability to the foreseeable bystander could not be limited in any rational way and could lead to unlimited liability for negligent conduct; that there is no cause of action for the emotional distress suffered by the foreseeable observer of an accident. It is this foreseeability approach that has been rejected by the courts. However, foreseeability is not the sole test of whether a legally cognizable duty is owed.

Although the approach of permitting recovery “for the inseparable consequences of fear for” a relative’s safety, as well as one’s own safety, where the plaintiff is in the zone of danger “has been said to be a rather arbitrary limiting rule”; however, arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties, and that delineation of limits of liability in tort actions is usually determined on the basis of considerations of public policy.

A Bronx Personal Injury Lawyer the zone-of-danger rule, which allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family, is said to have become the majority rule in this country. It is premised on the traditional negligence concept that by unreasonably endangering the plaintiff’s physical safety the defendant has breached a duty owed to him or her where he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant’s conduct. Recognition of this right to recover for emotional distress attributable to observation of injuries suffered by a member of the immediate family involves a broadening of the duty concept but not the creation of a duty to a plaintiff to whom the defendant is not already recognized as owing a duty to avoid bodily harm. In so doing it permits recovery for an element of damages not heretofore allowed. Use of the zone-of-danger rule thus mitigates the possibility of unlimited recovery, an overriding apprehension expressed in a landmark case, by restricting liability in a much narrower fashion.

Additionally, the circumstances in which a plaintiff who is within the zone of danger suffers serious emotional distress from observing severe physical injury or death of a member of the immediate family may not be altogether common.

The general rule, as explained by the American Law, is that there cannot be recovery for emotional disturbance, or its consequences, arising from the peril of a third person. The exception lies in the fact that the defendant, by his negligence, has endangered the plaintiff’s own safety and threatened him with bodily harm so that the defendant is in breach of an original duty to the plaintiff to exercise care for his protection.”

Where 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.

The court rejects any suggestion that the zone-of-danger rule is overly susceptible to fraudulent claims or that the emotional injuries claimed here are incapable of acceptable proof. The court has previously disposed of these arguments in one case and held that: “Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one. The only substantial policy argument is that the damages or injuries are somewhat speculative and difficult to prove.

However, the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions. In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and the jury to weed out the dishonest claims.

The court is not suggesting that any trifling distress would be sufficient to support recovery of damages under the zone-of-danger rule. Rather, the emotional disturbance suffered must be serious and verifiable. Additionally, the compensable emotional distress must be tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant.

The zone-of-danger rule adopted in the instant case is not inconsistent with the past decisions of the courts that have denied recovery for emotional distress attributable to a family member’s death or injury. None of those cases involved plaintiffs subjected to a danger of bodily harm, although some of the plaintiffs had been present during, had observed, and even had participated in the negligent conduct.

The court is not creating a new cause of action which has not heretofore existed under the tort law of New York; rather, recognizing the right of a plaintiff to whom the defendant has owed but breached a duty of reasonable care (as determined under traditional tort principles) to recover as an element of his or her damages, those damages attributable to emotional distress caused by contemporaneous observation of injury or death of a member of the immediate family caused by the same conduct of the defendant. There may be an enlargement of the scope of recoverable damages but there is no recognition of a new cause of action or of a cause of action in favor of a party not previously recognized as entitled thereto. In conformity with traditional tort principles, the touchstone of liability in these cases is the breach by the defendant of a duty of due care owed the plaintiff.

Thus, the factual situations claimed bring both cases within the zone-of-danger rule. In each case plaintiffs assert that they were subjected to an unreasonable risk of bodily injury by negligent conduct on the part of defendants. In each, the seriously injured or deceased person was a member of the immediate family of plaintiffs, each of whom alleges serious emotional trauma as a result of observing the injury or death.

Although plaintiffs under the first appeal did not actually see the husband/father being injured, they do assert their instantaneous awareness that he had been injured as well as their observation of him immediately after he was struck by defendants’ automobile.

Plaintiffs under the second appeal claim similar observations.

The claims in both cases are sufficient, if substantiated by the evidence, to entitle plaintiffs to recover for their asserted emotional distress damages.

If one is negligent in their actions and cause one to suffer personal injuries, they may be called upon in a court of law to answer for the physical, mental or emotional harm that resulted. The wrongful conduct can subject the actor to liability. If you are one of those people who have been wronged, our NYC Personal Injury Lawyers or our NYC Car Accident Lawyers, among others, can help you. We, at Stephen Bilkis & Associates, are the best in the field.

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