States take different approaches on what elements are needed to sue for negligent infliction of emotional distress as a bystander. In states such as California and Texas, bystanders are able to sue for negligent infliction of emotional distress (NIED) when a driver is involved in an accident that causes bystanders to suffer emotional distress.

Again, states vary on requirements for NIED compensation. Generally, states require the essential elements required to sue for NIED include:

  1. The Impact Rule: The defendant’s actions caused some type of impact or physical contact. This rule is only used in a few states, and requires anything that may cause a minor (or major) impact such as a percussive effect of an explosion or being stricken with a pebble, to fulfill the requirement.
  2. The Zone of Danger Rule: Requires the plaintiff to be in close enough proximity to the defendant’s negligent actions that the plaintiff was at risk of physical harm. More states follow this rule than the Impact Rule, and it limits claims to emotional distress to those based on fear of injury.
  3. Foreseeability Rule: Followed by a majority of states, this rule requires the defendant to have been able to reasonably predict that her or his actions could cause negative consequences for the plaintiff. This rule, unlike the above two, does not require physical harm or risk to be present.

When Will Emotional Distress Be Reasonably Foreseeable to the At-Fault Driver?

Foreseeability refers to whether a reasonable and prudent person would be able to foresee that harm could result from the at-fault driver’s conduct. Under the Bystander Theory, the plaintiff must demonstrate the following:

  1. The plaintiff and car accident victim were closely related;
  2. The plaintiff was at the scene of the accident, and was aware of the injury; and
  3. The plaintiff suffered serious emotional distress, greater than that of a disinterested bystander.

Do I Need to Be Physically Harmed or in Danger of Being Hit to Sue?

Depending on the state and whether bystanders are allowed to sue for negligent infliction of emotional distress, bystanders do not need to be physically harmed, or in danger of harm in order to sue the defendant.

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Does the Bystander Have to Be a Family Member to Sue?

Typically, the bystander plaintiff will need to meet the following criteria in order to be eligible for compensation:

  1. The bystander who is seeking damages must be closely related to the accident victim;
  2. The bystander witnessed the accident and was immediately aware that the victim was injured in the accident; and
  3. The bystander experienced serious emotional distress, meaning a degree of emotional harm that is greater than a disinterested bystander would experience after having witnessed the accident.

People who are considered “closely related” to the accident victim include children, parents, siblings, grandchildren, and relatives who reside in the same home as the victim. In some states, unmarried cohabitants, with the exception of domestic partners, are ineligible for NIED compensation.

How Can I Avoid Liability for Negligent Infliction of Emotional Distress to a Bystander in an Automobile Accident?

If you are being sued for negligent infliction of emotional distress to a bystander, your defense attorney may be able to show that the plaintiff’s emotional distress was not foreseeable. This is a commonly used defense, especially in cases where the bystander was not closely related to the car accident victim.

Do You Need a Personal Injury Attorney to Sue for Emotional Distress?

If you are experiencing emotional distress caused by the negligent actions of another person, you should speak to a personal injury attorney as soon as possible. Your lawyer will be able to advise you of your rights, help you build your case, and represent your best interests throughout the legal process.