Bystander Recovery for Emotional Distress

Publication year2021
Connecticut Bar Journal
Volume 64.

64 CBJ 275. Bystander Recovery for Emotional Distress

Bystander Recovery for Emotional Distress


Claims for emotional harm and mental anguish generally fall into two categories. In the first, the emotional distress arises from personal injuries sustained by the negligent conduct of another or from fear of one's own safety due to the negligent conduct. The person claiming harm under this scenario is the sole "victim." The second situation involves emotional distress which arises from witnessing injury or the threat of injury to another. This is commonly referred to as "bystander" emotional distress.

Under Connecticut law, we have come to accept recovery for emotional harm as an important element of damages to the physically injured party in a personal injury claim. Individuals asserting claims as the sole victim of negligent conduct have been allowed recovery as far back as 1853. Moreover, since that time the rights to recovery for such individuals have been steadily expanded by the Connecticut appellate courts. A more difficult and still unsettled issue relates to the question of whether or not individuals who are bystanders and witness someone else being injured can themselves be compensated for the emotional harm which they subsequently suffer. This article addresses that specific issue.


A. Individual Recovery

It is well settled law in Connecticut that emotional distress generally constitutes a compensable injury. Recovery for emotional distress has been allowed consistently in situations where the plaintiff claiming emotional harm was the direct victim of a tortfeasor's negligent conduct. (fn1) Such claims were first acknowledged in the case of Segar v. Town of Barkhamsted. (fn2) Segar allowed recovery for mental suffering attendant with physical injury suffered by the plaintiff. (fn3) Subsequent to Segar, a plaintiff's right to recover for emotional damages has been steadily expanded. In Orlo v. Connecticut Co., (fn4) the Supreme Court held that the impact requirement for the "zone of danger" test was abolished. It found that although plaintiff needed to be within the zone of physical danger, the negligence need not produce a contemporaneous traumatic physical injury. Fright and shock alone was found to be sufficient to establish a compensable injury. (fn5) This conclusion was based upon general principles of tort liability law and was in accordance with section 436 of the Restatement (Second) Torts.

Recovery for emotional harm and mental suffering was extended to include the fear of future harm as a result of the defendant's negligence in Figlar v. Gordon (fn6) In Figlar a young girl who suffered a brain injury was permitted compensation for the anxiety she experienced for the possibility of epilepsy developing in the future as a result of the injury. (fn7) Several years later, Urban v. Hartford Gas Co. (fn8) held that there was no need for an allegation of physical danger if the emotional distress was a foreseeable consequence of the negligent conduct. The plaintiff in Urban was a victim of a tort arising from a contractual relationship. The defendant's negligence was not the kind where a physical impact or danger therefrom would be expected. The Urban court distinguished the character of conduct which could make the defendant legally responsible under such circurnstances. If the defendant intentionally subjected the plaintiff to emotional distress, which he should have recognized was likely to result in illness or other bodily harm, then those physical injuries alleged in the complaint would be proper elements of damages even though the defendant had no intention of inflicting such harm. If, on the other hand, the defendant did not intend to cause the emotional distress, but his actions arose from negligent conduct, then the alleged bodily harm would still be a proper element of damage if the defendant should have realized that his conduct involved an unreasonable risk of causing the distress and from the facts known, should have realized that the distress might result in illness or bodily harm. (fn9) Subsequently, in Strazza v. McKittrick (fn10) the Court held that no consequential injury was required if the negligent conduct caused fright or shock in one within the range of ordinary danger.

The culmination of the expansion of a plaintiff's right to recover for emotional distress occurred when the Supreme Court held that "recovery for unintentionally caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." (fn11) In Montinieri v. Southern New England Telephone Co., (fn12) the plaintiffs were held at gunpoint by a released convict during which time they were in constant fear for their lives. After the incident, none of the plaintiffs sought medical attention and they sustained no actual physical injury. In reaching its decision, the Court found that there was no logical reason for making a distinction, for purposes of determining liability, between cases where the emotional distress results in bodily harm and cases where there is only emotional distress. Montinieri thus requires only that the defendant's conduct be such as to involve an unreasonable risk of causing emotional distress, which, if it occurred, might result in illness or bodily harm (but without the actual necessity of such physical harm occurring).

B. Bystander Recovery

Bystander emotional distress arises when a plaintiff suffers emotional injury due to the injury or threat of injury to a third party. The law surrounding bystander emotional distress has evolved more slowly and the parameters of recovery are still unsettled. The Supreme Court initially addressed the viability of a claim for bystander emotional distress in Strazza v. McKittrick. (fn13) In Strazza, the plaintiff was on the second floor of her house when she heard the crash of the defendant's truck into the first floor rear porch. She thought that her young son was on the porch and as a result of that perception, she suffered nervous shock resulting from the fear of injury to her child. In fact, her child was not injured in the collision. The Court held that "there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another." (fn14) Furthermore, it stated that the bar to recovery was not dependent upon whether the plaintiff suffered physical injury in the accident. At the time of the Strazza holding many jurisdictions concurred with this reasoning. (fn15)

It was not until 1980 that the Supreme Court once again addressed the issue of bystander recovery. Amodio v. Cunningham (fn16) involved a medical malpractice action in which the trial court struck the second count of plaintiff's complaint. The second count was brought by the plaintiff, individually, and alleged that she had suffered physical, mental and emotional harm caused by witnessing her daughter's death due to the defendant's negligent conduct. The Supreme Court upheld the trial court's ruling. It noted however, that since the Strazza decision, there was a growing trend among other jurisdictions to recognize a cause of action for bystander emotional distress. (fn17)

The trend...

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