A wrongful death action may involve the tragic situation where a family member actually witnesses the death or serious injury inflicted upon a loved one. New York allows relief to bystanders in wrongful death cases to persons in a zone of risk. In other words, family members of a person killed through a person’s negligence could sue for emotional distress if they witnessed the death or serious accident and were also at risk of receiving bodily harm from the defendant’s negligence.
This zone of risk rule is based upon the legal concept of negligence that the defendant breached a duty of care to these bystanders. Violation of this duty allows these family members to seek damages for emotional distress by suffering fright, shock or other emotional disturbance from witnessing the accident.
However, the defendant’s conduct had to be a substantial factor in causing the injury or death. The emotional disturbance must also be serious and verifiable and connected to observing serious injuries or the death of the family member.
The New York Court of Appeals adopted the zone of risk rule in two cases in 1984 even though the plaintiffs did not actually see their family members being injured. In the first case, the decedent was killed next to his disabled car on the highway. The defendant struck another car and he was pinned between the two vehicles. His wife and daughter were in the disabled car and were thrown about the car through the impact’s force and saw the injured victim immediately after the auto accident.
In the second case, the plaintiff’s car was struck by another driver who was allegedly driving recklessly and speeding. He also witnessed the injuries sustained by his wife which later claimed her life.
The Court ruled that the plaintiffs were subject to an unreasonable risk of bodily injury by another person’s negligent conduct. Although they did not actually see their family members being injured, they may be entitled to relief because they asserted their initial awareness that a family member was injured and saw the injuries after the car accidents.
Anyone considering a legal action for the death of a family member should seek prompt legal advice to help determine liability and the amount of damages that may be owed. Legal assistance can help assure that rights are protected.
Source: LEAGLE, Bovsun v. Sanperi, 61 N.Y.2d 219 (1984), Assessed Feb. 27, 2015