Pain & Suffering From Emotional Distress

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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A claim for pain and suffering based on being a bystander witness to an accident rather than the direct victim of the accident is brought as a claim for negligent infliction of emotional distress (NIED).  Bystander emotional distress claims vary from state to state, but generally the law may give you a cause of action if you are witness to an accident in which a close family relation was injured or killed.  Whether or not you are considered a witness or your distress is severe enough depends on how your state handles emotional distress cases, so contact an experienced attorney in your area before taking action.

TIP:  It is almost impossible for a legal layperson to succeed in a lawsuit that alleges emotional distress caused by witnessing an accident.  Proving emotional distress often requires detailed knowledge of the law and use of expert witnesses – neither of which are easy for non-lawyers.

Negligent Infliction of Emotional Distress

A bystander emotional distress claim is based on the legal cause of action negligent infliction of emotional distress (NIED).  NIED claims allege that the defendant’s negligent actions caused a party such severe mental or emotional impairment that the victim deserves compensation.  There are three common requirements for bystanders to accidents in NIED claims:

  • Close relation to the injury victim;
  • Present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
  • Suffers serious emotional distress–a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

State law may vary on how these elements are worded, but the general principal that you must be related to the victim, present at the scene, and severely affected remains the core of a bystander NIED claim.  

Proving Bystander NIED Elements

Proving the three listed elements is difficult regardless of what state you are in, so you will need to rely on an understanding of case law, expert witnesses, and well structured legal arguments that match the facts of your case to the legal requirements in your state.  Generally, you will need to show the three elements are satisfied as follows:

  1. Close relation means immediate family or a relative you have a demonstrated close relationship with – girlfriends or good friends will usually not qualify.  Children, siblings, parents, and spouses are the most widely accepted parties.
  2. What it means to witness an accident varies, and will depend on your proximity and your exposure.  If you are across the street and can clearly see or hear the accident and its aftermath, you are a witness.  If you are indoors or not within earshot / eyesight – only arriving at the scene afterwards – you are not a witness.
  3. Proving the first two elements is challenging, but most NIED claims that fail do so because of an inability to prove the emotional distress was sufficiently severe.  Although you do not need to demonstrate a physical injury, you do need to show that your emotional distress altered your life.  If you were unable to work, unable to leave the house, had trouble sleeping, couldn’t eat, stopped speaking to friends or family, or had any other measurable ill-effects then your distress may be sufficiently severe.  You should have records from a doctor or psychologist that notes your symptoms and provides some diagnosis of your condition – just like with physical injury claims, a NIED claim that is unsupported by professional diagnosis is unlikely to succeed.

An experienced attorney will know how to evaluate your bystander NIED case and gather the evidence necessary to prove your claim.  

What to Expect in a NIED Case

The opposing party will defend itself by attacking your evidence and by challenging your role in the accident in the following ways: 

  • Trying to establish whether or not you have any pre-existing mental health issues that could be the cause of your distress
  • Arguing you were, in some way, responsible for the accident or the injury the victim suffered – such as leaving a child unsupervised next to a busy street before the child was hit by a car. In some states, if you were partially responsible, you would be barred from recovering anything for your emotional distress. (Contributory negligence) In other states, your recovery would be reduced by a percentage. (Comparative negligence) A qualified attorney will be able to tell you what the law is in your particular state.
  • Challenging the severity of your emotional distress. Often times the attorney for the other party will demand your medical records going back either a certain number of years or even ask for all of your medical records to date, in order to see your medical history. The opposing party may ask you to go for an independent medical exam with a physician, likely a psychiatrist or a Ph.D. psychologist of their choosing.
  • Showing that you did not actually witness the event.  In most cases you would be questioned by attorneys in order to find out exactly what you saw, experienced and suffered following the accident.

What you say to opposing attorneys and the physicians who examine you is critical to your case.  You should work with an experienced attorney prior to speaking with the opposing side in order to make sure you are comfortable and well prepared to defend your claim.  Attorneys who are familiar with bystander NIED claims offer free consultations and typically work on commission – although some fees may be required to pay for expert witnesses.  You will need an attorney for a NIED case, so shop for one in order to find a lawyer that you are comfortable with before you take legal action.

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