A plaintiff asserting claims for negligent infliction of emotional distress must establish that 1) they were owed a duty by a defendant , that such duty was breached and because of that breach they were exposed to an unreasonable risk of bodily injury or death. In New York the general rule is that bystanders to an accident are not owed a duty and cannot assert a such a claim . However , New York law recognizes the an exception to this principle , which is called the " zone of danger " rule. This rule was first recognized in the case of Bovsun v Sanperi , , 61 N. Y. 2d 219 , 223-24, . , 461 N.E. 2d 843 (1984) . The case held that immediate family members may recover for " shock or fright " who are in the zone of danger with the person who is injured. In Trombetta v Conkling 82 N.Y.2d 549 (1993) the Court of Appeals stated that plaintiff , the niece of a woman who was killed in an accident in the plaintiff's presence by a truck and was holding her aunts' hand at the time she was hit by the truck , may qualify to bring suit as a bystander for the negligent infliction of emotional distress under the " zone of danger rule " . This has been the law since 1984 .
I have represented client's who were struck by automobiles who ran red lights or stop signs and died . One of the first questions I get form the family members is whether they can sue for their emotional distress. Unfortunately unless the family member was in the " zone of danger " to the person who was hit by the car or truck and died, the answer is no .
Contact me Ed Lemmo or a member of my team at Lemmo Law at 646-522-9082 or [email protected] and visit my website at www.lemmolaw.com for a free consultation and we can discuss how to protect you and your family in what matters most to you when tragedy strikes.