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79. What is the strongest argument that the pedestrian can make in response to the driver's defense?
The pedestrian has brought an action against the driver of the truck for negligent infliction of emotional distress. In her defense, the driver asserts that she should not be held liable, because the pedestrian's emotional distress and resulting physical symptoms are not compensable.
A pedestrian was crossing a street in a crosswalk when a woman walking just ahead of him was hit by a truck. The pedestrian, who had jumped out of the way of the truck, administered CPR to the woman, who was a stranger. The woman bled profusely, and the pedestrian was covered in blood. The woman died in the ambulance on the way to the hospital. The pedestrian became very depressed immediately after the incident and developed physical symptoms as a result of his emotional distress.
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A bystander who was not in danger but witnessed another's injury may recover for emotional distress where the bystander is in a close relationship with the victim of the defendant's negligent actions.
D is correct. Because the pedestrian was in the path of the truck, he was under a direct physical threat from the driver's negligence. Defendants who create a foreseeable risk of physical injury to a plaintiff may be liable for inflicting emotional distress as a result. The pedestrian could, therefore, recover for the emotional distress that he suffered as a result of his fear for his own safety, and many courts would also allow him to recover for all other emotional distress that he suffered in connection with the event.
A is incorrect. Most states allow plaintiffs to recover damages for the emotional distress of seeing another person injured or killed by a negligent driver, but they usually require that there be a close relationship between the plaintiff and the injured person before recovery is allowed.
B is incorrect. Normally, the fact that someone chooses to come to the aid of another neither insulates that person (the «Good Samaritan») from liability for his or her own negligence nor provides that person with a cause of action for the pure emotional distress suffered as a consequence of providing the aid.
C is incorrect. The fact that the pedestrian was covered in the woman's blood and developed physical symptoms as a result would not alone give rise to recoverable damages based on emotional suffering. Courts typically require that the plaintiff experience the danger himself, not simply perceive an upsetting event and develop physical symptoms as a result.