Negligent Infliction of Emotional Distress in Pennsylvania – Bystander Theory:  

In Pennsylvania, in order to maintain a claim for Negligent Infliction of Emotional Distress (NIED), a plaintiff must demonstrate one of four factual scenarios: (1) the defendant owed a fiduciary duty toward the plaintiff; (2) the plaintiff suffered a physical injury that caused the emotional distress; (3) the plaintiff was in the “zone of danger” of the defendant’s tortious conduct; or (4) the plaintiff witnessed a serious injury to a close family member (“bystander theory”). Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Toney v. Chester County Hospital, 36 A.3d 83 (Pa. 2011).

Where a plaintiff seeks to recover under the bystander theory, Pennsylvania law requires that a plaintiff must be “reasonably foreseeable” due to the traumatic injury caused by the defendant. Sinn, 404 A.2d at 672; Mazzagatti v. Everingham, 516 A.2d 672, 677 (Pa. 1986). In this regard, the Supreme Court of Pennsylvania has adopted a three-part inquiry which requires that a plaintiff must: “(1) be located at or near the scene of the accident; (2) suffer an emotional shock as a result of a contemporaneous and sensory observance of the accident; and (3) be closely related to the victim of the accident.”  Sinn, 404 A.2d 672; Neff v. Lasso, 555 A.2d 1304, 1314 (Pa. Super. Ct. 1989).  Pennsylvania Courts have clarified that the “sensory and contemporaneous observance” requirement is not limited to visual observance but that “[i]t is the immediate sensory awareness and not the source of the awareness which must control.”  Neff, 555 A.2d at 1314

Recovery under a theory of NIED is further limited by the requirement that the person seeking damages must suffer physical injury as a result of witnessing the harm to the close relative. Mazzagatti, 516 A.2d 672; Love v. Cramer, 606 A.2d 1175 (Pa. Super. 1992).  “The amount of harm that must be alleged, however, is not as clear.”  Love, 606 A.2d at 1178.  In discussing this issue, the Superior Court has noted that “symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and . . .  ongoing mental, physical and emotional harm,” sufficiently establish physical harm or injury as physical manifestations of a psychic injury.  Love, 606 A.2d at 1179.  The Superior Court has further determined that “knots” in a plaintiff’s stomach, nightmares, low self-esteem, being susceptible to fright, and major depression are cognizable symptoms of a physical manifestation of emotional distress.  Brown v. Phila. Coll. of Osteopathic Med., 674 A.2d 1130, 1137 (Pa. Super. 1996).

If you or someone you love has been injured in an accident or has question regarding a claim for Negligent Infliction of Emotional Distress, contact attorney Jeffrey Stanton for a free consultation.