Recently, the motorcycle accident lawyers at Kass & Moses were retained by two clients, a husband and wife, injured in the same motorcycle accident. The husband was riding his motorcycle and suffered severe physical injuries as a result of the accident. The wife was driving a car behind her husband and observed the accident take place. She did not suffer any physical injuries but she did suffer severe emotional distress as a result of seeing her husband hit and observing his injuries.
This raises the question of who is a bystander and when can a bystander recover for negligent infliction of emotional distress? In general, a bystander is someone who is not directly involved in an accident but who is very close to it. As a result of the bystander’s proximity to the accident, he/she may be able to bring a claim against the defendant for failing to use reasonable care to avoid causing the accident and subsequent emotional distress.
The tort (civil wrong) of negligent infliction of emotional distress is recognized in nearly all fifty states. However, each state has its own unique requirements before a victim can bring a claim. However, in general, in order to bring a claim, your motorcycle accident lawyer must prove:
- The defendant was negligent
- The bystander suffered emotional distress
- The conduct of the defendant caused the emotional distress
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Various states may add additional elements to the claim. Some states require that the emotional distress be severe. Others require that the bystander be subjected to a high risk of physical impact or suffer physical harm. Illinois for example requires that the bystander be within the “zone of danger” of the accident.
Note that intent is nowhere to be found in the requirements for this cause of action. The driver of an automobile does not have to intend to cause emotional distress. It is enough that he/she was negligent (breached his/her duty of care).
It is very difficult to prevail on a claim for negligent infliction of emotional distress. If you do suffer emotional distress, we strongly recommend that you seek counseling from a mental health specialist who can assist you and document your condition.
If you or a loved one has suffered severe emotional distress as a result of observing your spouse, child or family member injured in an accident, contact the motorcycle accident lawyers at Kass & Moses for a free consultation.