Bystander Claims: Can You Sue After Watching a Loved One Get Hurt?

Bystander claims give family members a legal cause of action when they witness a loved one suffer serious injury or death in an accident. Bystander claims for negligent infliction of emotional distress do not require physical injuries. However, states may limit bystander claims to close family members in the zone of danger who witness the traumatic injury at the time it happened.

To recover compensation in a bystander claim, you may need to show physical manifestations of your emotional trauma, including diagnosed depression, anxiety, or post-traumatic stress disorder (PTSD). To understand your legal options after witnessing a loved one suffer a traumatic injury, talk to a local personal injury attorney.

Understanding Bystander Claims

If you are with a close family member when they are suddenly injured in an accident or attack, witnessing the injury can cause serious trauma. Even if you don’t suffer physical injury, watching a loved one get seriously hurt can cause emotional distress and mental anguish. Bystander claims recognize the damage caused by witnessing a loved one suffer a catastrophic injury or death.

Examples of bystander cases include witnessing someone injured or killed in a car accident, a fall, a pedestrian accident, a construction site accident, a public transit accident, or a physical assault.

Not all states recognize bystander claims without an associated physical injury. States have different legal requirements to prove emotional damages to recover compensation in a bystander claim.

Negligent Infliction of Emotional Distress Claims

Negligent infliction of emotional distress (NIED) is a type of legal claim that allows injury victims to sue for emotional harm caused by negligence. Claims for emotional distress related to a personal injury case are common. However, some states allow for a separate and independent NIED claim, even if the victim does not suffer physical injuries in the accident.

For example, if you are injured in a car accident caused by negligence, you can file a personal injury lawsuit to recover compensation for your physical injuries and emotional harm. In jurisdictions that recognize bystander NIED claims, you may be able to recover for emotional harm after witnessing your child’s death even if you were not physically injured, if you meet that jurisdiction’s requirements.

Some states allow you to file an independent NIED claim based on the emotional distress of witnessing the traumatic event. Depending on state law, you generally need to be a close family member who witnessed the accident when it happened and suffered emotional injury as a result.

Some states do not recognize independent claims for negligent infliction of emotional distress. For example, Arkansas does not allow bystanders to recover for NIED claims. Texas takes a similar approach and does not recognize independent NIED claims. Instead, emotional trauma claims must be related to physical injury claims or caused by intentional actions.

Who Qualifies for a Bystander Claim?

Most states limit bystander claims to an immediate family member, including spouses, children, parents, and siblings. Other states expand bystander claims to include grandparents and grandchildren in a close family relationship or unmarried couples living together. A few states limit bystander claims to the parent-child relationship, where both parties have physical contact.

Some states allow people within the zone of danger, who fear imminent harm, to file a bystander claim. Check with your personal injury attorney to see whether you can qualify for a bystander claim if you witnessed someone close suffer serious injury or death.

How Close Do You Have To Be to the Accident?

If you get a phone call the next day after a loved one dies in an accident, that is generally too distant and too delayed to qualify for a bystander claim. States take different approaches to how bystanders qualify, generally based on time, nearness, and foreseeability of the harm to the bystander. Different approaches can determine whether you can sue after witnessing an accident involving a family member.

Sensory Perception of the Accident

Most states follow some version of the sensory perception test, known as the Dillon rule. To qualify for a bystander claim, the bystander must perceive the injury or harm as it happens.

Visually witnessing the accident as it happened generally qualifies, but watching a later video of the accident would not. Sensory perception can also include hearing the accident as it happens.

In some states, this could even include remote witnessing, such as talking to someone on the phone or video chatting while they are injured in an accident.

Foreseeability

Foreseeability is another legal test for determining liability in negligence claims. The defendant may be liable for negligence if they could reasonably foresee that their actions would cause emotional distress to a bystander.

Foreseeability is evaluated on a case-by-case basis, with the jury generally deciding whether the defendant is liable for causing emotional trauma.

Zone of Danger

States like New York follow a zone-of-danger rule for bystander claims. The bystander must be within the zone of danger when they witness a loved one get hurt. Being in the same vehicle involved in an accident generally qualifies as being within the zone of danger.

However, if you are sitting in a coffee shop and witness a car accident involving your loved one from across the road, that does not qualify as the zone of danger.

Physical Impact Rule

Some jurisdictions apply an impact rule to negligent emotional-distress claims, requiring a physical impact or injury to the plaintiff rather than contact with the victim or accident scene.

For example, Georgia’s impact rule requires a physical impact, a physical injury, and mental suffering caused by the physical injury. Say you’re holding someone’s hand when they are killed by a falling object, but you suffer no injury. Without a physical impact and injury to the bystander, Georgia’s impact rule would not be satisfied.

Do You Need Physical Symptoms of Harm?

Only about half of states require some physical symptoms to qualify for a bystander claim. In states that require physical manifestation, types of physical symptoms vary. The most obvious and direct physical evidence of emotional distress could include fainting or having a heart attack at the time of the accident.

However, many of the effects of traumatic events may not show themselves immediately. These can take the form of post-traumatic stress disorder, depression, anxiety, or sleep disorders. Victims of emotional distress can use medical records, a mental health professional’s diagnosis, or expert testimony as evidence of how their emotional distress manifests.

Damages Available in a Bystander Claim

In a bystander claim, you can recover economic and non-economic damages directly related to witnessing the traumatic accident. Economic damages include the financial costs of mental health treatment, including medication and future mental health care. Non-economic damages can compensate you for the emotional pain and mental distress of witnessing the event, including the lasting psychological harm.

You have a limited time to file a bystander claim because of the statute of limitations. Contact an attorney as soon as you can so you can file your claim within the time limit and hold the negligent parties accountable. For help pursuing a bystander claim after watching a loved one get hurt, contact a personal injury lawyer for legal advice.