Torts: Bystander Cases

The following question was asked in a comment, here on the blog:

Could you recap the elements of Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress?

Also is there such a claim as bystandar Intentional Infliction of Emotional Distress?

Response:

The elements for intentional and negligence infliction of emotional distress are very similar. Intentional infliction of emotional distress requires an act amounting to extreme and outrageous conduct, causation, and damages. With intentional infliction of emotional distress, intent on the part of defendant or recklessness on the part of defendant is required. With negligent infliction of emotional distress, the defendant breaches a duty to avoid causing emotional distress to another by either causing physical impact to another that leads to emotional distress, or by causing severe emotional distress to another that is accompanied by physical symptoms. The fault requirement is merely one of negligence, rather than intent or recklessness.

Bystanders:

There are rules for bystanders (in other words when bystanders can sue for these torts) for both intentional and negligent infliction of emotional distress. In regards to intentional, you'll have a situation in which a bystander views the defendant intentionally or recklessly causing emotional distress to another. For that bystander to recover, he will either have to prove the elements for intentional infliction of emotional distress as listed above, or prove that he was present when the injury occurred, that he is a close relative of the injured person, and that the defendant knew both of these facts.

In regards to negligent infliction of emotional distress, one avenue for a bystander to recover is to prove that he, himself, was threatened with physical injury by the plaintiff's breached duty of care, and that emotional distress has resulted. This is often deemed the zone of danger. Plaintiff, if using this avenue to recover damages, will need to prove that he was threatened with physical impact; it will not be enough that he merely witnessed the impact.

Another possibility is for plaintiff to recover even if he was not in the zone of danger. Here, plaintiff will have to prove that he saw defendant negligently injure another, and that he (the plaintiff) and the person injured are closely related.

In either case under negligent infliction of emotional distress (zone of danger, or seeing the injury of another) plaintiff will recover only if some physical symptoms accompany the caused emotional distress. This is an important distinction to make, because under intentional infliction of emotional distress, there is no requirement of physical symptoms.