Also known as: bystander victim · bystander recovery · zone of danger
Written by attorneys — see sources below.
Plaintiffs who suffer injury because they stand within the zone of danger created by tortious conduct aimed primarily at another. Recovery turns on whether a reasonable person would have foreseen risk to someone situated like the plaintiff at the time of the act.
Brandon Black stood next to a loading dock when a truck backed negligently into crates that toppled toward him. The crates struck Brandon and caused broken ribs. Because a reasonable person would have foreseen risk to anyone standing in that immediate area, the driver owed Brandon a duty of care.
Bernard Bass watched from the curb as his young daughter was struck by a car driven by a negligent motorist. Bernard suffered severe emotional distress that manifested in physical symptoms. Courts permit recovery for such family members present at the scene even without their own physical impact.
On September 27, 1964, at approximately 4:30 p.m., at the intersection of Blue Ridge Road and Chenango Avenue in Sacramento County, defendant David Legg operated his motor vehicle in such a manner that it struck and killed two-year-old Erin Lee Dillon. Plaintiff Cheryl Dillon, the mother of the deceased child, was a pedestrian at or near the intersection in close proximity to the accident and actually witnessed the impact and death of her daughter. Plaintiff Robert Dillon, the minor brother of the deceased, was also a pedestrian in close proximity to the accident and witnessed the impact and death of his sister. The complaint set forth three separate counts seeking recovery for the resulting injuries. In the first count, Cheryl Dillon alleged that as a direct and proximate result of the defendant's negligence she suffered fright, shock, and mental anguish and sustained physical injuries along with great emotional and physical pain and suffering. The second count alleged that Robert Dillon suffered great emotional and physical pain and suffering as a direct and proximate result of witnessing the accident. The third count alleged that Clyde Dillon, the father of the deceased minor, sustained a loss of the affection, society, and companionship of his daughter and incurred funeral and burial expenses. Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrers without leave to amend and entered a judgment of dismissal in favor of the defendant. Plaintiffs appealed from that judgment to the Supreme Court of California. In related proceedings, the trial court granted a motion for judgment on the pleadings against the mother's cause of action but denied a similar motion as to the sister's cause of action, and later denied a motion for summary judgment on the sister's claim. The case thus presented claims by a mother who was not within the zone of danger and by a sibling who may have been within it.
View caseBeacon Bank operated near a rail yard where a chemical spill occurred. The spill forced evacuation and shut down the bank's operations for days, causing lost profits. The bank recovered because its location placed it within the foreseeable zone of economic harm created by the spill.
On July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated Rail Corporation when ethylene oxide manufactured by defendant BASF Wyandotte Company escaped from a tank car owned by defendant Union Tank Car Company and leased to BASF. The tank car was punctured during a coupling operation with another rail car and ignited. The municipal authorities evacuated the area within a one-mile radius surrounding the fire, which included the North Terminal building of Newark International Airport where plaintiff People Express Airlines’ business operations are based. People Express employees were prohibited from using the North Terminal for twelve hours, although the feared explosion never occurred. The plaintiff contends that it suffered business-interruption losses as a result of the evacuation. These losses consisted of cancelled scheduled flights and lost reservations because employees were unable to answer the telephones to accept bookings. Fixed operating expenses allocable to the evacuation period were incurred and paid despite the offices being closed. No physical damage to airline property and no personal injury occurred. According to the original complaint, each defendant acted negligently and these acts proximately caused the plaintiff’s harm. An amended complaint alleged additional counts of nuisance and strict liability. Conrail moved for summary judgment. The trial court granted the motion on the ground that absent property damage or personal injury economic loss was not recoverable in tort. The trial court also granted summary judgment motions by BASF and Union Car on the same reasoning. The Appellate Division reversed the trial court’s order granting summary judgment and remanded the cause to the trial court. This Court granted defendant Union Car’s petition for certification, in which Conrail and BASF joined. Plaintiff asserted at oral argument that at least some of the defendants were aware from prior experiences that ethylene oxide is a highly volatile substance. Further, emergency response plans in case of an accident had been prepared. When the fire occurred that gave rise to this lawsuit, some of the defendants’ consultants helped determine how much of the surrounding area to evacuate.
View caseA non-family bystander present during outrageous conduct directed at another may recover only if the severe emotional distress results in bodily harm. The requirement distinguishes immediate family members, who recover without bodily harm, from other bystanders who must show physical consequences.
Supporting sources
Yes. Under the Cardozo view, a defendant owes a duty only to plaintiffs within the range of reasonably foreseeable risk at the time of the negligent act. A bystander outside that zone receives no duty even if actual injury occurs.
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Courts examine physical presence at the scene, the closeness of the relationship to the direct victim, and whether the distress produces bodily harm for non-relatives. These elements limit the class of plaintiffs who may recover for witnessing injury to another.
Supporting sources
…trauma caused by the defendant's negligence only if the plaintiff were present at the scene of the accident and were in the zone of danger, is an artificial and unrealistically restrictive barrier. We shall explain that the availability of a cause of action for emotional trauma should turn on the defendant's breach of a duty…