The infliction of emotional distress can be the sole basis for a personal injury claim under Arizona law, even in the absence of a physical injury that directly resulted from the incident. There are two types of emotional distress claims: direct, and witness. In a direct claim, Person A can sue Person B for the emotional distress that Person B’s actions directly caused Person A. In a witness claim, Person A can sue Person B because Person A witnessed Person B injure Person C, thus causing emotional distress to Person A.

I want to focus on the witness claim here. Such claims are sometimes referred to as “bystander” claims. Here is a hypothetical set of facts we can use to explore this topic:

Martha is walking along the sidewalk of a public street. Her 8-year-old son, Jon, is walking slightly ahead of her. Victor is in his car, driving down the same street as Martha and Jon. Victor realizes he is about to pass the entrance to a parking lot he needs to enter, and he hurriedly makes a right turn into the entrance without signaling or looking to see if the entrance is clear. Martha and Jon had just begun to cross through the entrance when Victor made his turn. Victor’s car hits Jon, but misses Martha by mere inches. Jon suffers injuries that require hospitalization, but he makes a full recovery. Weeks later, Martha requires medical care for debilitating anxiety, which she attributes to witnessing Victor hit Jon.

Now, let’s imagine Martha brings a personal injury claim against Victor for negligent infliction of emotional distress. At the end of the trial (if there is a trial), the judge will give the jury instructions about how to decide the case pursuant to Arizona’s laws. Per Arizona’s Revised Civil Jury Instructions, the judge’s directions will probably look something like this:

Martha claims that Victor’s negligence caused Martha’s emotional distress. On this claim, Martha has the burden of proving:

  1. Victor was negligent;
  2. Victor’s negligence created an unreasonable risk of bodily harm to both Martha and Jon;
  3. Victor’s negligence was a cause of bodily harm to Jon;
  4. Martha’s direct observation of the event resulting in bodily harm to Jon caused Martha to suffer emotional distress;
  5. Martha’s emotional distress resulted in physical injury or illness to Martha
  6. Martha and Jon had a close personal relationship;
  7. Martha’s damages.

When you plug the facts into the law above, you can see that there is a good chance a jury would find that Martha should win her case. First, Victor was probably negligent because he failed to act as a reasonable person should in that situation – he should have signaled, slowed down, and checked to see if any pedestrians were crossing through the entrance before making his turn.

Second, Victor’s negligence likely created an unreasonable risk of bodily harm to both Jon and Martha. Jon was the only one hit, but Martha was only inches away from being hit as well. This puts her into the “zone of danger,” as it is commonly referred to. This would be a much tougher aspect of the case if Martha were farther away from Jon when he was hit.

Third, Victor’s negligence clearly caused Jon’s harm; there was no other possible cause. Fourth, Martha should be able to provide sufficient evidence that Victor’s actions against Jon caused her to suffer emotional distress. Such evidence could include testimony from other family members, medical records, etc.

Fifth, Martha could likely meet this requirement because she can offer evidence of her treatment for anxiety. She should also offer evidence that the anxiety stemmed only from the incident in question, and was not present before.

Sixth, Jon is Martha’s son, so the jury would likely find they have a sufficiently close relationship. A family relationship is not required in all cases; in a different case, it might be a close friendship. However, in all cases, the plaintiff must prove that the relationship was sufficiently close. Finally, Martha must prove her damages that the court can remedy. Again, this will require evidence of medical records, lost wages, etc.

Hopefully Martha’s hypothetical case has helped to give a general overview of the requirements of a successful negligent infliction of emotional distress claim by a person who witnessed the injury of another. Of course, understanding the basic requirements of a successful claim is just the first step. If you are preparing to bring this type of claim, it will be beneficial to seek the assistance of an experienced personal injury attorney. Please give us a call.

 

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 Emotional Distress from Witnessing Another’s Injury, 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.