James v. Lieb

221 Neb. 47, 375 N.W.2d 109 (1985)

 

RULE:

A plaintiff bystander has a cause of action for negligently inflicted foreseeable emotional distress upon a showing of marital or intimate familial relationship with a victim who was seriously injured or killed as a result of the proven negligence of a defendant.

FACTS:

Appellant's son and daughter were riding their bicycles when the garbage truck owned by the trucking service backed into an intersection, through a stop sign, and hit and ran over the daughter, killing her. The son helplessly watched the entire incident. As a result, the son became physically ill and suffered mental anguish and emotional distress. Defendants contended that because the parents failed to allege that the son was within the zone of danger or in fear for his own safety, no cause of action for emotional distress had been asserted. Based upon prior case law, the trial court dismissed the petition. On review, the court reversed the dismissal and remanded.

ISSUE:

Did the plaintiff fail to state a cause of action by alleging that he had an intimate familial relationship with the victim, his sister, and that she was killed as a result of defendant's negligence without alleging that he was within the zone of danger or in fear for his own safety?

ANSWER:

No.

CONCLUSION:

The court expressly overruled the zone of danger rule adopted in Fournell v. Usher Pest Control Co., 305 N.W.2d 605 (1981). The court held that the parents had stated a cause of action for their son for negligent infliction of foreseeable emotional distress by alleging that he had an intimate familial relationship with the victim, his sister, and that she was killed as a result of the negligence of the driver and trucking service.

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