Legal Rights of Bystanders and Family Members

When a person is injured, his suffering radiates to other people like rippling water. Many feel emotional distress, but few are entitled to compensation from the wrongdoer. The states vary widely in their rules as to which bystanders and family members can recover for this type of injury.

  • “Emotional distress” defined
  • The three state doctrines that permit recovery
  • The difficulties of proving an emotional distress case


Crying WomanThe U.S. Supreme Court described emotional distress as “mental or emotional harm, such as fright or anxiety, not directly brought about by physical injury, but that may manifest itself in physical symptoms.” Bystanders and family members often experience severe emotional distress when a person is bitten by a dog. However, the law does not provide compensation for all who suffer in this manner.

Recovery for emotional distress depends on state law. The states differ widely as to their conditions for liability. There are three broad groups: the physical injury states, the zone of danger states, and the foreseeability states. These categories are used in connection with claims by bystanders and family members, not a person bitten by a dog — for him, a degree of suffering from emotional distress is presumed, which is why he is entitled to recover for “pain and suffering.”

In the physical injury states, a person cannot recover for emotional distress unless he was physically injured to some extent. The nature and degree of injury which will qualify for compensation varies greatly within this group of states. Some demand that the claimant prove he incurred a significant physical injury. Others accept proof of severe shock to the nervous system. Still others require only a slight physical impact. Kentucky and Oregon are examples of a physical injury state.

The “zone of danger” states hold that a person can recover only if he was within the “zone of danger” during the accident that injured the primary victim. In other words, he had to be so close to the accident that there was a high risk of physical impact to him, causing him to be afraid for his own safety. In one case, for example, a dog leaped at a young mother, pulled her baby from her arms, and began to maul the infant. The mother had to kick the dog to rescue the child. In that case, the mother was within the zone of danger because the dog could have bitten her at any moment. Illinois is an example of a “zone of danger” state.

In the “foreseeability” states, a person can recover if his emotional distress was or should have been a foreseeable consequence of the defendant’s act or omission. There is a three-pronged test in these states: the indirect victim must be a very close relative, present at the scene, who personally perceived the accident. For example, a father who hears ferocious snarls and the screams of his son may recover compensation in California even though the attack took place in an adjacent room. The requirements differ significantly from state to state; for example, in Louisiana there is a statute (Civil Code section 2315.6) that permits claims from certain relatives “who view an event causing injury to another person, or who come upon the scene of the event soon thereafter” while California allows the same type of relatives to recover if they even hear the injury take place, but does not permit them to recover if they simply “come upon the scene of the event soon thereafter.” 

Not all states fall into the three groups above described. For example, in Colorado a bystander who suffers from extreme and severe emotional distress can recover actual treatment costs, but cannot recover for the emotional stress itself “unless the court finds justification by clear and convincing evidence therefor.” No guidelines are given for the court to find “justification.” (See Col. Rev. Stats. sec. 13-21-102.5.)

Emotional distress cases can be very difficult to win. The situation must be one that would severely distress anyone, not just the claimant. For example, nobody could doubt the emotional distress of the young mother who had to rescue her daughter from being mauled. On the other hand, if the mother was looking in a different direction, the child was in a stroller, and the bite was a single snap by a dog being walked on a leash, it might not be so clear that emotional distress would result.

It can be difficult to prove that a person has suffered a significant degree of emotional distress. If the claimant did not receive counseling, the case will require strong “lay” witness testimony about inability to accomplish tasks at home or at work, terrible moods, and other behaviors of a person who is suffering mentally. The rules of litigation allow the defendant to review all of the claimant’s prior psychological problems and treatment, which can be such an intrusion that it makes the emotional distress claim very unattractive to make.

Nevertheless, in an appropriate case it is possible to recover significant compensation for emotional distress, if the claimant can satisfy the jurisdiction’s conditions for liability and can prove the extent of her mental suffering.