NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
WHEN CAN A BYSTANDER RECOVER?
by
Susan D. Thurmer and Tamara L. Novotny
Attorneys at Law
Cousineau McGuire Chartered
Minneapolis, Minnesota




     It is not uncommon for a plaintiff or claimant to seek damages for emotional distress which they claim arose as a result of another party's negligence. A driver injured when another vehicle negligently crosses into their lane of travel, for example, may claim that they not only received physical injuries in the resulting accident but also suffered emotional distress. If the driver can prove that they actually suffered emotional distress as a result of the defendant's negligence in such a case they would likely receive some compensation.

     Now, what if the injured driver's spouse was following in a second vehicle and witnessed the accident? Can the spouse recover for the emotional distress he suffered as a result of witnessing his wife's accident? That is the particular issue addressed by this article. Specifically, when can a third person - a bystander - recover damages for the emotional distress they suffered as a result of witnessing another person being negligently harmed.

     Historically courts were reluctant to allow recovery for emotional damages, whether to the person directly injured or a bystander. The reasons most often given for not allowing such relief were the fear that emotional distress would breed fraudulent claims, that a flood of litigation would ensue, the fact that emotional injuries are subjective and difficult to prove and difficult to value, and the risk defendants would be subjected to unlimited exposure. Over time, however, courts began to recognize that advances in medical science now provide a better means of determining the legitimacy of emotional as well as physical injuries. And despite the fact that it may sometimes be difficult to determine the genuineness and value of emotional damage claims, courts are now more willing to allow such claims to be presented to a jury for its evaluation. Emotional damage claims, after all, do not pose any greater challenge than evaluating some other common claims such as pain and suffering.

     The particular elements that must be proven in order to establish a claim for negligent infliction of emotional distress as a bystander, however, vary from state to state. But all states tend to follow some variation of the following three tests: 1) zone of danger; 2) physical impact; or 3) foreseeability. The requirements needed to establish a claim for negligent infliction of emotional distress as a bystander in Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri and Wisconsin are addressed in this article.

I. ZONE OF DANGER.
     Unlike the physical impact test, discussed in Part II below, which requires a bystander to be injured or somehow physically impacted before they may recover for emotional distress damages, the zone of danger test is essentially based upon the premise that the odds of an emotional distress claim being genuine increases if the bystander was within a zone in which they, like the direct victim, could have been harmed rather than simply observing the accident from a safe distance. Basically, it is thought that persons in such proximity to danger could reasonably fear for their own safety and, therefore, suffer legitimate emotional trauma. On the other hand, it is less likely that persons beyond the "zone of danger" will truly suffer emotional distress and, in any event, for public policy reasons some reasonable line must be drawn between those who might recover and those persons that may not. That line marks the borders of the zone of danger.

     A. Illinois.

   Illinois used to apply the physical impact test to emotional distress claims brought by either a direct victim of negligence or a bystander. However, approximately 20 years ago, in Rickey v. Chicago Transit Auth., 457 N.E.2d 1 (Ill. 1983), Illinois transitioned to use of the zone of danger test for bystander claims. Thus, under Illinois' version of the zone of danger test a bystander must show that:

  1. The bystander was in a zone of danger (i.e. in such proximity to the accident n which the direct victim was injured that there was a high risk of physical impact to plaintiff);


  2. The bystander feared for their own safety; and


  3. The bystander suffered a physical injury or illness as a result of emotional istress caused by the defendant's negligence.


Id. at 5. Failure to establish any one of these elements would preclude a successful bystander emotional distress claim. The case of Maness v. Santa Fe Park Enter., Inc., 700 N.E.2d 194 (Ill. App. 1998), illustrates a situation in which the plaintiff could not establish any.

   In Maness, a wife was sitting in the grandstands at an auto race in which her husband was a driver. She watched as her husband's car struck a wall and, despite a lack of movement from him or any signal that he was alright, the race continued and medical attention was delayed. It turns out he suffered a heart attack that would end up being fatal. The plaintiff alleged that as a result of witnessing these events she suffered severe and permanent mental and emotional trauma. She could not maintain a bystander negligent infliction of emotional distress claim, however, since she was safely seated in the grandstand rather than in any place where she was at risk of danger. Consistently, she could not and did not allege that she feared for her own safety or that she suffered any physical injury.

   When considering an emotional distress claim in an Illinois case, it is important to keep in mind that the three elements of the zone of danger test only applies to bystander claims. Illinois continues to follow the physical impact test to determine whether a direct victim of negligence can maintain a claim for negligent infliction of emotional distress. See Allen v. Otis Elevator Co., 563 N.E.2d 826 (Ill. Ct. App. 1990) and Corgan v. Muehling, 574 N.E.2d 602 (Ill. 1991).1

   Illinois courts, however, have recognized that in some circumstances a plaintiff may pursue two separate causes of action for emotional distress, both as a direct victim and bystander, provided they can establish the elements needed under both tests. In Hayes v. Illinois Power Co., 587 N.E.2d 559 (Ill. App. 1992), for example, John Hayes was fatally electrocuted when he became entangled in a wire while plowing. His grandson was also plowing nearby and witnessed his grandfather being electrocuted. When he went to help, the grandson suffered severe burns and shock when the electric current passed through him. The court held that the grandson could maintain a cause of action as a direct victim since he suffered injuries when he came into contact with his grandfather. He could also maintain a claim as a bystander since at one point he regained consciousness and remained in the zone of danger where he could reasonably fear for his own safety. Cf, Turner v. Williams, 762 N.E.2d 70 (Ill. App. 2001) (finding children who were in the same vehicle at the time of an accident resulting in their father's death could not recover for emotional distress under the bystander zone of danger test since they did not have any memory of the accident).

     B. Minnesota.

   Minnesota long ago recognized that a person may sustain injuries as a result of emotional trauma or a fear for their safety. See Purcell v. St. Paul City Ry. Co., 50 N.W. 1034 (Minn. 1892) and Okrina v. Midwestern Corp., 165 N.W.2d 259 (Minn. 1969). Consequently, Minnesota's courts established that a plaintiff can recover for negligent infliction of emotional distress if they suffer contemporaneous physical injuries or are in the zone of danger and exhibit physical manifestations of emotional distress. The issue of whether someone who is not personally injured or placed in physical danger - a bystander - could recover for emotional distress, however, was not addressed until 1980 in Stadler v. Cross, 295 N.W.2d 552 (Minn.).

   In Stadler, a mother was talking with a friend a few yards from the road when she heard car brakes screeching and turned to see her five year old son flying through the air before he hit pavement. Her husband, the father of the child, was playing rugby approximately 100 yards away from the accident when he heard the accident, ran to the scene and realized his son was hurt.

   In considering whether the parents could recover for their emotional distress under these circumstances, the Supreme Court of Minnesota recognized that a negligent defendant's liability exposure cannot be unlimited; limits must be imposed that are "workable, reasonable, logical, and just as possible." Id. at 554. Finding there to be no persuasive reasons for moving away from the zone of danger requirements expressed in Okrina and Purcell, the court held that in order to recover for emotional distress a bystander, like a direct victim, must establish that:

  1. They were within the zone of danger;


  2. Reasonably feared for their own safety; and


  3. Suffered severe emotional distress, with attendant physical manifestations.2


See also, Engler v. Wehmas, 633 N.W.2d 868, 872 (Minn. App. 2001). Minnesota courts have strictly abided by these requirements and have declined invitations to move away from the zone of danger test.

   In Staab v. Indep. Sch. Dist. No. 833, 1993 WL 276877 (Minn. App.), for example, the court reiterated that Stadler states Minnesota's bystander law and upheld the trial court's finding that a mother could not recover for emotional distress resulting from seeing her six year old child fatally run over by school bus because she was standing at the doorway of her home and not in the zone of danger. In Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d 534 (Minn. App. 1994), a plaintiff was riding in a vehicle with a group of friends when the driver lost control, the car rolled over and resulted in the death of one friend. The plaintiff was unable to recover for her claimed emotional distress resulting from witnessing the death of her friend since she did not have any physical manifestations of distress. Similarly, in Iacona v. Schrupp, 521 N.W.2d 70 (Minn. App. 1994), a case in which Cousineau, McGuire & Anderson was involved, the court held that a plaintiff could not recover for the emotional distress caused by seeing his friend run over by a tanker truck because the plaintiff was not in the zone of danger and did not fear for his own safety.3

   The Iacona decision reflects the need to watch for situations in which the plaintiff is seeking to recover for emotional distress caused not by a fear for their own safety but rather due to a fear of someone else's safety. In Engler v. Wehmas, 633 N.W.2d 868 (Minn. App.2001), for example, a mother was in the zone of danger of the car that ultimately struck her child as he emerged from a wooded area along a highway. She was unable to recover for her emotional distress, however, because her distress was not the result of a fear for her own safety but rather due to a fear for her son's safety. The Minnesota Court of Appeals concluded that it would be creating new law if it found the defendant tortfeasor was obligated to protect a person from witnessing harm to a family member and declined to do so. See also, Swalve v. Reller, 1990 WL 72188 (Minn. App.) (denying recovery where there was no evidence husband feared for his own safety in an accident which resulted in his wife's death).

     C. Missouri.

   Missouri initially required that a plaintiff suffer a physical injury before they could recover for emotional distress. In Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983), however, Missouri decided to abandon the physical impact rule and instead explained that a plaintiff could recover for emotional distress provided the defendant should have foreseen that their conduct involved an unreasonable risk of causing distress and the resulting emotional distress was medically diagnosable and of such severity to be medically significant. Id. at 773.

   The Bass court, however, left unanswered the specific issue as to whether a bystander could recover for emotional distress. Id. at n.3. And while in Davis v. Shelton, 710 S.W.2d 8 (Mo. Ct. App. 1986), Missouri's Court of Appeals, Western District, was asked to resolve the question of whether or not a bystander could recover emotional distress damages, the court sidestepped the issue by simply finding that the bystander in that case could not establish the damage element of Bass, regardless of whether such a claim would be recognized in the state.

   Missouri finally dealt with the issue of bystander negligent infliction of emotional distress claims in Asaro v. Cardinal Glennon Mem'l Hosp., 799 S.W.2d 595 (Mo. 1990), and chose to adopt the zone of danger test. Specifically, Asaro provides that a bystander can maintain a negligent infliction of emotional distress claim provided they can show that:

  1. The defendant should have realized their conduct involved an unreasonable risk to the plaintiff;


  2. The bystander was present at the scene of an injury producing, sudden event; and


  3. The bystander was placed in the zone of danger (i.e., placed in a reasonable fear of physical injury to his or her own person).


Id. at 599-600.

   In a more recent case, Missouri's highest court refused to expand the zone of danger to include a husband who was at risk of being infected from his wife who had mistakenly been stuck by a needle causing her to contract hepatitis C. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462 (Mo. 2001). The court noted that even if it was inclined to expand the zone of danger, under the facts of that case, the husband would still not have been able to establish the requisite bystander elements since he was not present at the time his wife was pricked by the infected needle. Id. at 465.

II. PHYSICAL IMPACT.
   Once states began to recognize emotional distress claims they often required a plaintiff to show that they contemporaneously sustained a physical injury or physical impact before they could recover for their emotional trauma. Stated another way, the physical impact test provides that if there is no impact, there is no recovery. The requirement of impact or injury is seen by the minority of states still following it as a means of assuring that the claim for emotional distress has some legitimate basis.

   As indicated, most states have moved away from the physical impact test as they found it to be too restrictive since there are circumstances in which a person may be genuinely traumatized even though they did not sustain a physical injury or impact. Conversely, courts found that the physical impact requirement could be established in even the most trivial scenarios involving the slightest impact.

   Of the eight states discussed in this article, only Kentucky continues to apply a true physical impact test. Before 1991, Indiana also applied the impact test but has since then begun to modify, relax and/or carve out exceptions.

     A. Kentucky.

   The case of Wilhoite v. Cobb, 761 S.W.2d 625 (Ky. App. 1988), illustrates Kentucky's application of the physical impact test and the court's continued recognition of the state's long-standing requirement that a plaintiff suffer some physical contact or physical injury before they can recover for emotional distress. In Wilhoite the Court of Appeals of Kentucky seemed to question the logic of the rule but nevertheless was obligated to follow precedent. It therefore affirmed the trial court's dismissal of a mother's claim for mental pain and suffering, medical expenses and impairment of earning ability which she suffered as a result of seeing her young daughter, who was playing on a big wheel a few feet off the road, get run over and killed. As the court explained, in Kentucky, "there can be no recovery for fright, shock, or mental anguish which is unaccompanied by physical contact or injury." Id. (citing Deutsch v. Shein, 597 S.W.2d 141 (1980). Thus, because the mother did not come in contact with the vehicle which negligently caused her daughter injury she could not recover for her emotional distress.

   In a more recent case, Williams v. Kroger Co., 2004 WL 1300107 (Ky. App.), a mother sought to recover for the emotional distress she suffered upon learning that her adult son, daughter-in-law and grandchild were killed and a second grandchild seriously injured in a motor vehicle accident. The distress caused her to suffer a heart attack. The Court of Appeals of Kentucky, however, again expressed its obligation to apply the state's long-standing impact or contact rule, refused the plaintiffs' request to abolish the rule, and upheld the trial court's dismissal of the plaintiffs' claim since she did not have any contact with the accident. Id. at *2 (noting that the amount of physical contact or injury needed to satisfy the test is minimal and that no matter how slight, trifling, or trivial, damages for mental distress must still be the result of physical contact or injury).

     B. Indiana (with modifications).

   As mentioned above, Indiana initially followed the physical impact rule and, in fact, did so for nearly a century until 1991. By the time Shaumber v. Henderson, 579 N.E.2d 452 (Ind. 1991) reached the state's highest court, however, a re-examination of the physical impact test was considered necessary and a relaxed or modified impact test was then set forth. Since then, Indiana's courts have continued to modify and/or create exceptions to the rule resulting in a much more broad recognition of bystander negligent infliction of emotional distress claims than before. The development of Indiana's current law as to bystander negligent infliction of emotional distress claims is seen in the following line of cases:

  • Shaumber v. Henderson, 579 N.E.2d 452 (Ind. 1991) - The vehicle in which a mother and her two children were riding was struck by another vehicle. Besides seeking recovery for the physical injuries they suffered in the accident, the mother and daughter also sought to recover for the mental anguish they suffered as a result of seeing their son/brother killed. Because their emotional trauma was triggered by the death of their family member rather than their physical injuries, however, the plaintiffs could not recover under the impact rule.4 The court, though not willing to abolish the existing physical impact rule, did find that the impact rule needed to be re-examined and explained its relaxed/modified impact rule as follows:


    • When, as here, a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, we hold that such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff.
    Id. at 456. Because the mother and daughter were both involved in the impact causing their son's/brother's death (the accident), the court held that they should be allowed to present evidence of their emotional distress to a jury.

  • Conder v. Wood, 716 N.E.2d 432 (Ind. 1999) - In this case the court clarified that the direct physical impact required by the modified impact rule established in Shaumber does not mean that the impact has to cause the plaintiff physical injury nor does the emotional trauma have to be the result of any physical injuries caused by the impact. In fact, it does not matter how minimal the physical impact is or how it occurs. All that is required is that the impact somehow causes the plaintiff to be involved in the tortfeasor's negligent conduct. The impact does not even have to be initiated by the tortfeasor.

       Thus, in Condor the court found that by pounding on the panel of a truck in an attempt to prevent it from running over her friend, the plaintiff was sufficiently involved and, therefore, could proceed with a claim for negligent infliction of emotional distress caused by witnessing her friend get run over and die at the accident scene. It was not necessary to show that she was physically injured as a result of her involvement (the pounding) nor that her emotional trauma was the result of such involvement.


  • Groves v. Taylor, 729 N.W.2d 569 (Ind. 2000) - In this case, the minor plaintiff was standing in a driveway when she heard a "pop" and turned to see her younger brother's body rolling off the highway after being fatally struck by a vehicle. Because there was no direct impact, however, the plaintiff could not recover for her emotional distress even under Indiana's modified impact test. Faced with this sympathetic factual scenario the Supreme Court of Indiana chose to analyze the purpose behind Shaumber's direct involvement requirement and explained that it was simply to prevent spurious claims and, that logically, there would be circumstances in which in which the legitimacy of an emotional distress claim could be established despite the lack of any direct impact. The court therefore created what has been referred to as the "relative bystander test" which allows recovery if:

    1. a victim sustains a fatal or serious injury;


    2. the victim is the plaintiff's spouse, parent, child, grandparent, grandchild or sibling; and


    3. the plaintiff witnessed the accident causing the death/serious injury or came upon the scene soon afterwards and witnessed the aftermath.


    Id. at 572-73 (relying upon the standard established by Wisconsin in Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432 (Wis. 1994)).


  • Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692 (Ind. App. 2002) - The court applied the bystander test established in Groves and held that the parents of a child that had committed suicide were sufficiently involved in the events which led up to a funeral home losing his cremated remains such that they could maintain a claim for mental anguish.


  • Ritchart v. Indianapolis Public Schools, 812 N.E.2d 189 (Ind. App. 2004) - Applying the "relative bystander" test for only the second time, and in what appears to be a rare case in which a bystander claim has been denied in recent years, the court held that a mother could not recover for the emotional distress resulting from the fact that she did not know the whereabouts of her three year old disabled child for three hours after the school bus dropped him at the wrong address. Her son was not injured nor did she witness any part of the incident giving rise to her claim and, therefore, the mother could not establish two of the three elements required under the test established in Groves.


III. FORESEEABILITY.
   The "relative bystander" test discussed in the Indiana line of cases above, really reflects what might also be referred to as the foreseeability test. This test basically recognizes that when a person is seriously harmed by a tortfeasor's negligence, it is foreseeable that a third person - often a family member - may suffer emotional distress if they are a witness to their relative's accident or injury.

   The elements needed to recover in those states applying the foreseeability test are often quite similar but there are some variations. Therefore, the specific standard adopted in each state should be considered when evaluating the legitimacy of a bystander's claim for negligent infliction of emotional distress in Iowa, Michigan or Wisconsin.

     A. Iowa.

   The issue of whether a bystander, who is not in any direct physical danger, can recover for the emotional distress resulting from their witnessing harm negligently inflicted on someone else was first addressed in Iowa in the 1981 case of Barnhill v. Davis, 300 N.W.2d 104 (Iowa). In that case a son drove safely through an intersection and then stopped on the other side to wait for his mother who was following behind in a second vehicle. As he waited, he saw his mother's vehicle get hit and, although she only suffered some bruises, the son sought to recover for the emotional distress caused as a result of his fear for his mother's safety.

   Iowa's court declined to adopt the zone of danger test. Instead, it held that whether a negligent defendant should be liable to a bystander depends on whether their injuries are reasonably foreseeable and on whether there is a sufficient showing that the bystander's claim is serious and genuine. Thus, in order to recover on a claim for negligent infliction of emotional distress in Iowa a bystander must show that:

  1. The bystander was located near the scene of the accident;


  2. The emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence;


  3. The bystander and victim were husband and wife, or related within the second degree of consanguinity or affinity;5


  4. A reasonable person in the position of the bystander would believe, and the bystander did believe, that the direct victim of the accident would be seriously injured or killed;6 and


  5. The emotional distress to the bystander must be serious.


Id. at 108. See also Oberreuter v. Orion Indus., Inc., 342 N.W.2d 492 (Iowa 1984) (refusing wife/mother's request to expand holding in Barnhill to permit recovery where she neither witnessed nor contemporaneously perceived injuries to her husband and son, for to eliminate such requirements "would surely launch 'a first excursion into the fantastic realm of infinite liability'"). Although it does not appear that physical manifestations of the emotional distress is required in Iowa, Barnhill does mention that emotional distress claims which are compensable will ordinarily be accompanied by physical manifestations. Barnhill at 107-08.

   One year after Barnhill, the Supreme Court of Iowa held that a bystander could also seek recovery for emotional distress in claims based on strict liability or breach of warranty rather than negligence, provided the bystander could otherwise establish the elements of the Barnhill test. Walker v. Clark Equipment Co., 320 N.W.2d 561 (Iowa 1982) (wherein a sister witnessed her brother get crushed by a forklift). In other words, a bystander's right to recover in Iowa is not limited to cases alleging negligence.7

   Iowa's highest court was more recently presented with a request to place yet another spin on bystander claims. In Clark v. Estate of Rice, 653 N.W.2d 166 (Iowa 2002), a minor child was a passenger in a vehicle being operated by her mother. The mother negligently drove the vehicle into the path of an approaching truck. The child sustained physical injuries and her mother died. The child sought to recover from her mother's estate damages for the emotional distress arising from her witnessing the fatal injuries suffered by her mother in the accident.

   The court was asked to create an exception which would allow the child to recover for emotional injuries caused by witnessing injuries to the negligent defendant (her mother). In refusing to extend the bystander rule in such a manner the court explained that the bystander exception is based upon the duty that another person owes to a direct victim of their negligence.8 In other words, there is a general duty not to inflict harm on others and a bystander's claim derives from the foreseeability that bystanders may also be affected by witnessing the harm caused to their family member. In Clark, the minor child was not a bystander to another person's negligence which resulted in her mother's death. Rather, she was the direct victim of her mother's own negligence and, therefore, the bystander test was held not to apply.9

     B. Michigan.

   Like many other states, Michigan followed the no impact/no recovery rule for many years. However, in 1970 the physical impact requirement was first abandoned in a case involving the issue of emotional distress caused to direct victims. See Daley v. LaCroix, 179 N.W.2d 390 (1970) (wherein plaintiffs alleged fright and mental suffering resulting from being in their home when an electrical explosion occurred due to a defendant's vehicle striking a utility pole and the electrical lines leading to their home). A few years later, Michigan's appellate court was asked to determine whether a parent, who did not suffer any physical injuries, could recover for the mental distress caused by witnessing the negligent infliction of injuries upon their child. After refusing to adopt the "zone of danger" test, the court held that:

a parent may maintain a cause of action for mental anguish resulting in a definite and objective physical injury generated by witnessing the negligent infliction of injuries upon its child.
Toms v. McConnell, 207 N.W.2d 140, 146 (emphasis added). It is not sufficient for the parent to suffer emotional distress upon learning of their child's accident; they must witness the accident or its aftermath. See Perlmutter v. Whitney, 230 N.W.2d 390 (Mich. Ct. App. 1975). See also, Henley v. Dep't of State Highways and Transp., 340 N.W.2d 72 (Mich. Ct. App. 1983) (holding parents not entitled to recover for emotional distress where they did not learn of son's accident until arriving at the hospital five hours after the accident).

   In Gustafson v. Faris, 241 N.W.2d 208 (Mich. Ct. App. 1976), the Perlmutter holding was expanded and/or clarified to provide that a person may recover for emotional injuries they suffer even though they did not witness the accident as long as their emotional shock and resulting injuries occurred fairly contemporaneously with the accident. Thus, a bystander may recover for emotional damages if:

  1. The direct victim's injury is serious or at least of a nature to cause severe mental disturbance to the plaintiff;


  2. The plaintiff's emotional shock results in physical harm/injury;


  3. The victim is a member of the plaintiff's immediate family (e.g., husband, wife, parent or child); and


  4. The plaintiff witnesses the accident or suffers emotional shock and resulting injuries fairly contemporaneously with the accident.


Id. Michigan's court's have specifically held that emotional distress caused by witnessing a friend sustain serious or fatal injuries is not recoverable. See Nugent v. Bauermeister, 489 N.W.2d 148 (Mich. Ct. App. 1992) (refusing to expand the persons entitled to recover as bystanders in Gustafson to include close friends).

     C. Wisconsin.

   Unlike many other states, Wisconsin rejected the impact rule from the outset and instead adopted the zone of danger test in a 1935 case entitled Waube v. Warrington, 258 N.W. 497 (1935). In subsequent years, the elements needed to recover as a bystander were clarified so that as of 1984 a bystander seeking to recover for emotional distress needed to prove that: 1) they were in the zone of danger; 2) they feared for their own safety; and 3) their emotional distress had an accompanying or resulting physical injury. See Klassa v. Milwaukee Gas Light Co., 77 N.W.2d 397 (1956) (adding fear for own safety requirement) and Ver Hagen v. Gibbons, 177 N.W.2d 83 (1970) (adding physical manifestation requirement).

   Elements of Wisconsin's zone of danger test began to be chipped away at or abandoned when in Garrett v. City of New Berlin, 362 N.W.2d 137 (1985), the court allowed a minor child to recover for the emotional distress she suffered by witnessing her younger brother get run over by a police car and then running to his side, even though she had not feared for her own safety or sustained any physical injuries. The court allowed such recovery by labeling the sister as a participant rather than a bystander.

   Nine years later the Supreme Court of Wisconsin formally abandoned the zone of danger test and replaced it with a new approach which combined the traditional negligent tort elements (i.e., duty, breach, injury and causation) with public policy elements. Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432 (Wis. 1994). Thus, Bowen established that a bystander may recover for negligent infliction of emotional distress if:

  1. The defendant's conduct fell below the applicable standard of care (i.e., breached a duty);


  2. The plaintiff suffered an injury (severe emotional distress; no physical manifestations necessary);


  3. The defendant's conduct was a cause-in-fact of the plaintiff's injury;


  4. The victim of the defendant's conduct suffered a severe or fatal injury;


  5. The victim and plaintiff are related as spouses, parent-child, grandparent- grandchild, or sibling; and


  6. The plaintiff observed the incident and injury or the scene within minutes after the incident occurred.


Id. at 434-35, 442-45.

   The Wisconsin Court of Appeals has held that expert testimony is not needed to prove a bystander negligent infliction of emotional distress claim. See Stabenow v. Jacobsen, 2000 WL 157483 (Wis. App.).10 The Stabenow court found that a determination as to whether a plaintiff's emotional distress was caused by a defendant's negligence is within the realm of ordinary experience and lay comprehension and, therefore, expert testimony is not required. Id.11

   It has also been held that there can be no bystander negligent infliction of emotional distress claim in a medical malpractice case because Chapter 655 of Wisconsin's statutes provides the exclusive remedies available in such cases. Finnegan v. Skoglind, 666 N.W.2d 797 (Wis. 2003) (holding parents could not recover for the emotional distress they suffered as bystanders who watched their son's deterioration arising from medical malpractice).

IV. "PER PERSON" V. "PER OCCURRENCE" COVERAGE.
   Once a determination has been made that a bystander has a legitimate claim for negligent infliction of emotional distress, the next issue that may arise is whether there remains any insurance available for payment of the bystander's claims after paying damages to the direct victim or their heirs if a wrongful death action was commenced. Since, as seen above, a bystander is typically only allowed to pursue an action in cases in which there has been a serious or fatal injury, the damages will often be high and may even involve the payment of the policy's full liability limits.

   Therefore, whether there remains insurance available for a bystander's emotional distress claim will often depend on whether such claims fall within the "per person" limits, in which case the limits will often have been exhausted. If, on the other hand, the bystander's claim falls within the "per occurrence" provisions there will typically be additional funds available.

   Of the eight states discussed above, only four have addressed this issue. Indiana, Iowa and Michigan have generally found that a bystander's claim for negligent infliction of emotional distress is a separate, rather than derivative, tort and, therefore, is subject to a policy's "per occurrence" limits. See Allstate v. Tozer, 298 F. Supp.2d 765 (S.D. Ind. 2003) (finding bystander's emotional distress claims are a separate "bodily injury" and not subject to a policy's "each person" limits); Pekin Ins. Co. v. Hugh, 501 N.W.2d 508 (Iowa 1993) (finding bystander's claim constitute a bodily injury and are subject to "per occurrence" limits); Auto Club Ins. Assoc. v. Hardiman, 579 N.W.2d 115 (Mich. Ct. App. 1998) (bystander's emotional distress claim is not a derivative claim and, therefore, subject to "per occurrence" limits).

   Only Wisconsin has taken the position that a bystander's claim for emotional distress is subject to a policy's "per person" limits. In Estate of Gocha v. Shimon, 573 N.W.2d 218 (Wis. App. 1997), the court looked to that policy's definition of "bodily injury to one person" which specifically included "injury and damages to others resulting from this bodily injury." The court then explained that since the bystander would not have suffered emotional distress claims "but for" the injury to the direct victim, the "per person" limits applied. See also, Mullen v. Walczak, 664 N.W.2d 76 (Wis. 2003) (holding that husband's emotional distress claims arising from witnessing his wife's death had to be paid from her "per person" uninsured motorist limits rather than the inured's "per person" limits).12


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Footnotes:
1 In neither a direct victim or bystander claim for emotional distress, however, is there a need to show physical manifestations resulting from the emotional distress. See Corgan, 574 N.E.2d at 496.BACK
2 There is no absolute list as to what will constitute sufficient physical manifestations to maintain a negligent infliction of emotional distress claim and, in fact, it may depend on the circumstances of the case. See, e.g. Staab v. Indep. School District. No. 833, 1993 WL 276877 (Minn. App.) (listing mother's physical manifestations of emotional distress as anorexia, insomnia, dehydration and spastic colon), Silberstein v. Cordie, 474 N.W.2d 850 (Minn. App. 1991) (finding mother's symptoms of insomnia, loss of appetite, headaches and muscle tension, daughter's symptoms of abdominal pain and constipation, nail biting and development of highly sensitive skin, and son's blurred vision, dizziness and stomach problems raised sufficient fact issues as to the physical manifestation requirement), Leaon v. Washington County, 397 N.W.2d 867 (Minn. 1986) (weight loss, depression and feelings of anger, fear and bitterness not sufficient manifestations), Quill v. Trans World Airlines, Inc., 361 N.W.2d 438 (Minn. App. 1985) (finding that under the circumstances of the case in which the plaintiff feared his death when a plane suddenly went into a tailspin, his symptoms of sweaty hands, adrenaline surges, and elevated blood pressure and pulse established a prima facie case of emotional distress), Purcell, 50 N.W. 1034 (Minn. 1892) (plaintiff's fear and fright of death or injury caused violent convulsions, miscarriage and subsequent illness).BACK
3 It might be noted that under the circumstances of Silberstein v. Cordie, 474 N.W.2d 850 (Minn. App. 1991), the court found the "zone of danger" had been extended beyond the room in which the direct victim was shot to include to a second bedroom where a mother and her children were located. The conduct of the mentally ill defendant was so irrational that it was reasonable to believe the defendant might harm them as well in that second location. Id. at n.3.BACK
4 Indiana's impact rule required establishing: 1) an impact on the plaintiff; 2) which causes physical injury to the plaintiff; 3) which physical injury, in turn, causes the emotional distress. Shaumber, 579 N.W.2d at 454.BACK
5 This would include parents, children, grandparents and grandchildren, brothers and sisters. See State v. Sumpter, 438 N.W.2d 6, 8 (Iowa 1989). BACK
6 In an effort to explain what constitutes a "serious injury" the court adopted the definition found in Iowa's criminal statutes which provides that serious injury means, "bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Barnhill, 300 N.W.2d at 108 (citing Section 702.18, the Code 1979)BACK
7 In Jeannelle v. Thompson Med. Co., Inc., 613 F.Supp. 346 (E.D. Mo. 1985), the federal court predicted that Missouri's state courts would follow this Iowa decision and other similar California cases and held that a bystander could recover for emotional distress under a strict product liability theory. But see Pasquale v. Speed Prod. Eng'g, 654 N.E.2d 1365, 1372-73 (Ill. 1995) (finding bystander may not recover for emotional distress under strict liability theory).BACK
8 In the Illinois case of Seitz v. Vogler, 682 N.E.2d 766 (Ill. App. 1997), however, the court found it of little importance that the plaintiff wife and mother sought to recover for emotional injuries suffered as a result of her husband's negligence in the operation of a boat. As the court stated, "[w]e find unpersuasive defendant's argument that a cause of action for negligent infliction of emotional distress will lie only against a defendant who injured a third party." Id. at 775.BACK
9 The Clark court discussed the fact that Iowa has recognized only two situations in which there may be an independent claim for emotional distress without a related physical harm. The first is in those cases involving bystander liability. Clark, 653 N.W.2d at 170 (citing Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981). The second is when the nature of the relationship between plaintiff and defendant supports imposing a duty of care on the defendant to avoid causing emotional harm to the plaintiff. See Id. at 170-71 (citing a line of cases in which the relationship exception has been accepted). The Clark court, however, refused to recognize an independent duty requiring a parent to avoid inflicting emotional harm on a child passenger and, therefore, denied the child recovery under this exception as well. Id. at 173-74.BACK
10 It might also be noted that the defendant in Stabenow, besides unsuccessfully arguing that expert testimony was necessary to establish a bystander negligent infliction of emotional distress claim, also argued that the court erred in failing to set aside punitive damages that had been awarded. Because the court upheld the emotional distress claim, however, it determined that there was no need to reverse the punitive damage award. Stabenow, 2000 WL 157483, at *5.BACK
11 Based on some cases discussing the need for expert testimony in non-bystander cases alleging emotional distress, it would appear that at least some of the other states would take an opposite position as Wisconsin on this issue. See e.g., Hiscott v. Peters, 754 N.W.2d 839 (Ill. App. 2001) (explaining that even if the plaintiffs could bring a claim for negligent infliction of emotional distress, they had failed to support their claimed severe emotional distress with expert medical proof), Roling v. Daily, 596 N.W.2d 72 (Iowa 1999) (finding that recovery for emotional distress requires establishing by medical testimony a causal connection between the defendant's conduct and the claimed emotional distress), Patterson v. Wu Family Corp., 594 N.W.2d 540, 550 (Minn. App. 1999), rev'd on other grounds, 608 N.W.2d 863 (Minn. 2000) (finding expert testimony is needed to establish a connection between a defendant's conduct and plaintiff's claimed symptoms of intentional and negligent infliction of emotional distress as such medical factors are beyond the understanding of the average layperson), Childs v. Willliams, 825 S.W.2d 4, 10 (Mo. App. 1992) (noting that medical testimony is the exclusive means of proving a claim for intentional infliction of emotional distress where no physical injury has occurred).BACK
12 The American Family policy of the wife in this case provided, with respect to underinsured motorist coverage, that "the limits for 'each person' is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident". BACK

   
Susan D. Thurmer

   Born St. Paul, Minnesota; admitted to bar, Minnesota and U.S. District Court of Minnesota, 1980; Florida, 1980 (inactive), Court of Appeals, Eighth Circuit, 1983; Wisconsin and U.S. District Court of Wisconsin, Eastern and Western Districts, and U.S. Court of Appeals, Seventh Circuit, 1987.

Education: University of Minnesota, B.A., cum laude, 1977; Hamline University, J.D., cum laude, 1980.

Practice Areas: (Minnesota and Wisconsin) Civil Litigation; Personal Injury; Professional Liability; Products Liability; Premises Liability; Construction and Workplace Injury; Automobile and No-Fault Liability; Insurance Coverage Issues; Employment and Labor Law; Railway Labor Act Litigation; Transportation and Railroad Law/Federal Liability Act Claims.

Other Professional Activities: AV rated by Martindale-Hubbell.

Additional Information: Susan began her legal career with Cousineau, McGuire & Anderson (CMA) and subsequently went on in her practice to handle employment related and bodily injury claims for the Burlington Northern Sante Fe Railroad (formerly The Burlington Northern Railroad) and The Canadian Pacific Railroad (formerly the Soo Line Railroad) as well as continuing to represent several national insurance carriers. Susan has defended and tried numerous claims involving bodily injury, insurance coverage, and employment claims in State and Federal Courts in Minnesota and Wisconsin. In November of 2001, Susan merged her practice and rejoined Cousineau, McGuire & Anderson.

Member: Hennepin County Bar Association; Minnesota State Bar Association; Wisconsin State Bar Association; Florida State Bar Association; Minnesota Defense Lawyers Association; National Association of Railroad Trial Counsel (NARTC).

Thurmer

direct dial number: (952) 525-6945
e-mail: sdt@cousineaulaw.com

Tamara L. Novotny

      Born Fargo, North Dakota; admitted to bar, Minnesota, 1999, North Dakota 2000. Education: B.A., University of North Dakota in Grand Forks, North Dakota, summa cum laude, 1996; J.D., University of North Dakota School of Law, 1999. Member: Minnesota State Bar Association, Ramsey County Bar Association, and State Bar Association of North Dakota.
Novotny

direct dial number: (952) 525-6939
e-mail: tln@cousineaulaw.com
  
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