Bystander Claims for Negligent Infliction of Emotional Distress

By: Brian R. Taylor

In North Carolina, a bystander to a third-party’s injury which was caused by the negligent act of another may recover under a theory of negligent infliction of emotional distress (“NIED”).  These claims in which the plaintiff is concerned for the welfare of another are often referred to as “bystander claims.”

In order to prevail on any NIED claim, the NIED plaintiff must prove that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress, and (3) the conduct did in fact cause the plaintiff severe emotional distress.”  Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990).  While it is important to remember that the NIED plaintiff must establish the defendant’s negligence, the more unique topics in terms of NIED claims are the issues of reasonable foreseeability and severe emotional distress.

I.                   Reasonable Foreseeability

When it comes to bystander claims for NIED, the dispositive issue is often whether the severe emotional distress of the NIED plaintiff as a result of the negligent act of the defendant is reasonably foreseeable.  The inquiry of reasonable foreseeability for the purposes of NIED claims is whether a reasonable person in the defendant’s shoes could have anticipated that his or her actions would have resulted in the severe emotional distress of the plaintiff.

The foreseeability of severe emotional distress of bystanders has been frequently litigated in both the North Carolina Court of Appeals and in the North Carolina Supreme Court.  The landmark case in North Carolina for foreseeability in NIED claims is Johnson v. Ruark Obstetrics.  The Johnson Court established three factors to be considered on the inquiry of reasonable foreseeability in NIED claims.  The factors are as follows: (1) the plaintiff’s proximity to the negligent act; (2) the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned, and (3) whether the plaintiff personally observed the negligent act.  Id. at 305, 395 S.E.2d at 98.  Several years later, the North Carolina Supreme Court clarified that these factors are not “elements” and are therefore not determinative.  Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 334 N.C. 669, 672, 435 S.E.2d 320, 322 (1993).  Rather, the question of reasonable foreseeability under North Carolina law must be determined under all the facts presented and should be resolved on a case-by-case basis.  Id. at 672-73, 435 S.E.2d at 322.

The typical successful bystander NIED claim would involve a plaintiff who personally observed the defendant’s negligent act, which resulted in the injury of a third-party with whom the plaintiff shared a familial relationship.  Such a factual scenario would satisfy the factors set forth in Johnson.  However, the following cases show the possibility of expanding bystander NIED claims to other factual scenarios.

In a recent North Carolina Supreme Court case, Newman v. Stepp, 376 N.C. 300, 852 S.E.2d 104 (2020), the Court demonstrated the fact-specific basis by which foreseeability is analyzed.  In Newman, the plaintiffs were parents of a deceased two-year old.  The daughter was shot due to the negligence of defendants.  The defendants in Newman were the owners of a daycare that the plaintiffs’ daughter frequently attended.  The plaintiff-parents were not present at the scene where the negligent act occurred and therefore did not observe the negligent act.  In fact, the plaintiff-parents first saw their daughter at the hospital where she was transported.  Even though the plaintiff-parents were not present at the scene where the negligent act occurred, the Court held that the plaintiff-parents’ NIED claim should survive the defendants’ motion for judgment on the pleadings primarily because the defendants knew the daughters’ parents existed.  Therefore, the plaintiff-parents demonstrated an adequate showing of foreseeability.

In Riddle v. Buncombe Cty. Bd. of Educ., the North Carolina Court of Appeals examined the relationship between the plaintiff bystander and the injured third-party in the context of an NIED claim.  In Riddle, the plaintiff was a member of a high school football team that was practicing when a traumatic injury occurred.  The plaintiff witnessed one of his friends and teammates suffer the injury due to the clearly negligent act of a third-party.  The Court in Riddle noted that it was the first Court to examine a bystander NIED claim when the relationship between the bystander and the injured party was not a familial relationship.  The Court emphasized that the factors set forth in Johnson “is but one factor to consider in determining foreseeability” and that “no factor is determinative in all cases.”  However, the Court ultimately held that the plaintiff did not demonstrate that his severe emotional distress was reasonably foreseeable.  The Court reasoned that plaintiff did not make any showing that his friendship with the injured party made him peculiarly susceptible to severe emotional distress arising from the injury of the third-party.  It appears that the Riddle Court left open the possibility of establishing reasonable foreseeability with a showing of an “unusually close relationship” between the plaintiff and the injured third-party.

The above-cases show that while the factors in Johnson are closely followed, there is some leniency with regard to proving a successful bystander NIED claim.

II.                Severe Emotional Distress

An additional hurdle to NIED plaintiffs is the showing of severe emotional distress.  North Carolina courts have been consistent in holding that an NIED plaintiff must demonstrate emotional distress beyond temporary fright and unhappy or disagreeable emotions.  In most instances, a successful NIED plaintiff will likely have to prove what amounts to a disabling and/or diagnosable emotional or mental disorder. 

The term severe emotional distress has been defined by North Carolina courts as “any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.”  Johnson, 327 N.C. at 304, 395 S.E.2d at 97.  However, proof of severe emotional distress does not necessarily require medical evidence or testimony.  Coffman v. Roberson, 153 N.C. App. 618, 629, 571 S.E.2d 255, 261 (2002).

In Coffman v. Roberson, the North Carolina Court of Appeals held that the evidence of the plaintiff’s severe emotional distress was sufficient where the plaintiff, her friends, her family, and her pastor testified to the severe emotional distress she suffered and continued to suffer.  Id.  While an official diagnosis of a severe emotional of mental disorder may not be required, it is safe to say that ample evidence of the plaintiff’s severe emotional distress is a necessity.  NIED claims which do not set forth the intensity and duration of the distress will fail as a matter of law.  Waddle v. Sparks, 331 N.C. 73, 84-85, 414 S.E.2d 22, 27-28 (1992).

Bystander NIED claims serve an important role in providing compensation for those who are in the unfortunate position to witness a serious injury to a loved one that is caused by the negligence of another.  It is critical to consider these claims in all instances where a serious injury has occurred that was witnessed by others.