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Negligent Infliction of Emotional Distress & The Zone of Danger

Traditionally, a plaintiff could not recover for mental distress and emotional harm as a result of observing another party’s personal injury.  But note that many jurisdictions have adopted the zone of danger rule.  This modification allows a plaintiff to recover for mental distress as long as the plaintiff was in the zone of physical danger because of the defendant’s negligence.


So let us consider the example of an uncovered air shaft that was under repair in a parking garage.  The metal cover to the air shaft was left off, was leaning against the wall and the work area was not blocked off.  The uncovered hole is a foot off the floor and about 3 feet wide and 2 feet tall.  A mother parks her car in a parking slot by the uncovered hole and gets out with her six-year-old son.  Mom shuffles her son towards the trunk of the car as she gets additional items from the back seat.  While stepping to the back of the vehicle, the child stumbles and falls back into the hole and drops two floors.  Mom hears a scream and a thump, and she rushes to the hole.  Her keys fall into the unlit hole as she reaches with her arms and body into the hole to try to feel for and grasp her child.


Mom and her son understandably sue the parking lot’s owner for negligence.  Under the traditional view, mom could not recover for mental distress because she was a mere observant to her child’s injuries.  And even under the zone of danger rule, the defendant parking lot owner may interestingly argue that mom could not be in the zone of danger.  The adult mother could not stumble into the hole because of its size and location – only a small child is within the zone of danger under these circumstances.


The Rescue Doctrine to the Rescue


A vast majority of jurisdictions, however, have wisely embraced the rescue doctrine.  This rule allows a plaintiff to recover for emotional distress suffered while rescuing another person from a dangerous situation caused by a defendant’s negligence.  The modified doctrine recognizes that it is commendable to help those in dangerous situations and rescuers should be allowed to recover for emotional harm suffered as a consequence of their efforts.


In the above example, mom placed herself into the zone of danger when she realized that her son had fallen into the hole.  Mom could not accidentally fall into the hole like her small child in light of the hole’s dimensions, but her intentional conduct in trying to rescue her child certainly placed her at risk of falling into the hole herself.  Note that mom’s keys had fallen into the hole in the frantic scramble.  The mother in our working example should thus be able to claim emotional harm as a result of being in the zone of danger while attempting to rescue her child.


Plaintiffs should consult with a lawyer in order to comb through the material facts.  Plaintiffs should then rely on a skilled attorney to apply those facts to the law and explain the various options to plaintiffs.  Contact a Houston personal injury attorney to help you navigate the factual and legal issues in your case.

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