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63. Is the bystander likely to prevail?
A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander's arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian's life, but he experienced no resulting physical manifestations. The bystander has brought a negligence action against the driver.
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Normally, a plaintiff can recover only if the defendant's conduct caused a physical injury to the plaintiff. If the plaintiff's distress is caused by threat of physical impact (i.e., if the plaintiff is in the «zone of danger» created by the defendant's conduct), most courts require that the threat be directed at the plaintiff or someone in his immediate presence. On the contrary, a bystander outside the «zone of danger» of physical injury who sees the defendant negligently injuring another cannot recover damages for her own distress. However, some states will allow a bystander to recover based on foreseeability factors rather than a «zone of danger» theory if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) if the plaintiff was present at the scene; and (iii) if the plaintiff observed or perceived the injury. Therefore, this answer is correct because even states that allow witnesses who are not in the zone of danger to recover for the emotional distress of observing an accident limit recovery to witnesses who are closely related to the injured person.
A is incorrect. One who negligently injures another is liable to rescuers even when the rescuer voluntarily comes to the aid of the injured person.
C is incorrect. One who negligently injures another is liable to rescuers who are physically injured in the course of the rescue, but pure emotional distress is not usually recoverable in a negligence action in the absence of physical harm or a close relationship with the injured person.
D is incorrect. The bystander observed the accident from across the street. He was not in the path of the car so was not in the zone of danger.