Mesa AZ | The Danger Zone

The Danger Zone: Arizona’s Limit to Innocent Bystander Claims

American courts have long recognized injury claims in bystander or “near-miss” cases.  These cases usually involve a person who suffers mental or emotional injury because of an unreasonable or “negligent” act of another person.  This type of injury claim is called a negligent infliction of emotional distress claim.  “Negligent infliction” or NIED claims arise when a person witnesses an event that, while not causing immediate physical harm to the person, results in mental or emotional injury to the person witnessing the event.  NIED claims can be an important source of potential recovery for emotional injury because the injury-causing act is negligent, rather than intentional, and is typically covered by auto and or homeowner insurance coverage.

Bystander Injury Cases

The typical NIED claim arises when an innocent bystander witnesses a catastrophic injury to another person, but suffers no immediate physical injury.  This can occur, for example, when two people are using a crosswalk and one of them is hit by a car.  Or, a NIED claim can arise when a backseat passenger is not injured in a car crash but witnesses a catastrophic injury to a front seat passenger.  In each case, the “bystander” is entitled to recover compensation for the emotional injury caused by witnessing the event.

Limitations on Bystander Claims

As NIED claims have developed over the years, many courts, including Arizona’s, have placed limitations on NIED claims to try to limit the potential number claimants.  The Arizona Supreme Court outlined the requirements that must be met to make a NIED claim in a 1989 case called Keck v. Jackson (122 Ariz. 114), which said:

In order for there to be recovery for the tort of negligent infliction of emotional distress:

  1. The shock or mental anguish of the plaintiff must be manifested as a physical injury;
  2. The emotional distress must result from witnessing an injury to a person with whom the plaintiff has a close personal relationship, either by consanguinity or otherwise; and,
  3. The plaintiff/bystander must himself have been in the zone of danger so that the negligent defendant created an unreasonable risk of bodily harm to him.

While the first two requirements of a NIED claim are often easy to meet, the “zone of danger” limitation can be more difficult.  In order the meet this requirement, the claimant must be close enough to the injury causing event that he or she experience an “unreasonable risk of bodily harm.”  This analysis is very fact sensitive and it is important that the right facts be identified and legal arguments made to meet the zone of danger requirement.

Know Your Rights Regarding NIED Claims

Negligent Infliction of Emotional Distress or bystander claims can be complex and require specific and unique expertise.  If you or someone you know has been injured as a result of the acts of another person, it is important that you contact an attorney that has the knowledge and experience to explain your rights and who understands the unique law involved in NIED claims.   If you have questions, call attorney Brian Allen at (480) 461-5335 or contact him at bta@udallshumway.com for a free consultation to discuss your rights and options.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding The Danger Zone, or any other personal injury, please feel free to contact Brian T. Allen at  480.461.5335,  log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.