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I heard the screech of the car brakes outside when my son was struck by a car while riding his bike. Am I entitled to damages for my pain and suffering?
A claim for pain and suffering based on being a “bystander” at an accident rather than the direct victim of the accident is brought as a claim for negligent infliction of emotional distress (NIED). The framework for "bystander" recovery comes from the California case, Dillion v. Legg, which involved a mother who witnessed the death of her daughter and suffered severe emotional distress as a result. The law has narrowed somewhat in the last 15 to 20 years, and states do vary a bit on the theme, with some jurisdictions not excepting it at all. But generally, if you have a close familial relationship to the injured party, and you are a witness to the accident, and you have experienced emotional distress from "sensory and contemporaneous observance of the accident as contrasted with learning of the accident . . . after its occurrence," that is, having seen or in some states, just heard the accident, you are entitled to recovery for your injury. Many cases have further defined “witnessing an accident,” as being present at the scene and aware that something is injuring the victim. Again, states vary, so please consult an attorney in your area.
To be successful on a NIED claim, it must be proven that the "plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress--a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." (Thing v. La Chusa). To prevail, you’ll need to provide records from your physician or psychologist regarding your diagnosis and treatment. The responsible party may also ask for an independent psychological or psychiatric examination with a practitioner of their choice. In addition, you will likely have your deposition taken (testimony under oath, not in a courtroom). The opposing party will be trying to establish whether or not you have any pre-existing mental health issues, so you must be prepared to answer questions about your mental health prior to the accident.
You will also be asked questions about your son, whether or not he was being supervised at the time of the accident and by whom, to try to establish whether you may bear some responsibility for the accident yourself. In some states, if you were partially responsible, you would be barred from recovering anything for your emotional distress. (Contributory negligence) In other states, your recovery would be reduced by a percentage. (Comparative negligence) A qualified attorney will be able to tell you what the law is in your particular state. |
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