Bystander Recovery

Massachusetts allows recovery for emotional distress, in a personal injury claim, when a person witnesses injury to another, but only in specific circumstances. Such cases often stem from someone witnessing an auto accident, but can occur in many ways. A person can recover as a bystander where the person was never in danger from a defendant’s negligence, but instead merely observed or later came upon the effects of the negligence on another. Whether a person can recover for emotional injury as a bystander depends on a number of factors, such as where, when, and how the witness learned of the injury to the third person and what degree there was of familial or other relationship between the claimant and the third person. The bystander doctrine has even been extended to persons who did not directly witness an accident, but later observed injuries to a third person in the hospital where the persons were closely related. Whether recovery is available as a bystander is extremely fact dependent.

Zone of Danger

On the other hand, when a witness is herself within the zone of danger created by a defendant’s negligence, such a person is considered a primary victim and not a bystander. In either case, the witness must prove emotional injury manifested by physical symptomology such as anxiety, depression, sleeplessness, and behavioral changes, and that the injury was caused by the defendant’s negligence. Whether a witness is categorized as a bystander or primary victim, can determine whether or not they have a valid claim.

Negligent Infliction of Emotional Distress

In a recent case, the Massachusetts Appeals Court reversed the trial court judge’s dismissal of a complaint alleging negligent infliction of emotional distress where a 13-year old girl’s best friend was hit by a train and killed while they were crossing the tracks to get to a large hole in the defendant’s fence on their way home. The defendant argued that the witness, not having been struck by the train herself was therefore a bystander, and her relationship as “best friend” was insufficient to allow recovery. The trial court judge dismissed the claim stating that “allowing anyone who claims to be a “best friend” would radically expand this theory of tort liability well beyond developed case law.” The Appeals Court, however, found that “labeling the plaintiff a “bystander” does not make her so.” The Appeals Court continued that “a bystander is one who herself was never in danger from the defendant’s negligence, but instead merely observed or later came upon the effects of the defendant’s negligence upon another.” The Appeals Court contrasted a “bystander” with the plaintiff who was placed within the zone of danger created by the defendant’s negligence and was a “primary victim of the alleged negligence” who could recover for emotional distress and injuries caused by witnessing injuries negligently inflicted on another. The Appeals Court found that the complaint asserted a direct claim of negligence and not a derivative bystander claim, and left to another day whether being a “best friend” could satisfy the relationship required for bystander recovery.

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