Catron v. Lewis

Nebraska Supreme Court · Torts

TortsNegligent infliction of emotional distressnegligent infliction of emotional distresszone of dangerbystanderdirect victimfamilial relationshipsummary judgment

Facts

Catron was operating a motorboat on Center Lake while towing two tubes ridden by Samantha Rader and Aimee Stuart. As Catron headed toward shore, Panek, operating a jet ski owned by Lewis, turned to avoid Catron's boat and struck Rader's tube, killing her; both versions of the accident placed the collision at least 61 feet behind Catron's boat. Catron saw the collision, jumped into the water, and tried unsuccessfully to rescue Rader. Catron suffered serious medically diagnosed emotional injuries, but he had no physical impact or injury from the accident and was not related to Rader.

Issue

Can a plaintiff recover for negligent infliction of emotional distress, absent physical impact or injury, when he witnessed a nonrelative's death but was not within the zone of danger of the negligent conduct? More specifically, was Catron a direct victim or foreseeable bystander under Nebraska law?

Rule

In Nebraska, a plaintiff who suffers no physical impact or injury may recover for negligent infliction of emotional distress only if the plaintiff either (1) is a reasonably foreseeable bystander based on an intimate familial relationship with a seriously injured victim of the defendant's negligence or (2) is a direct victim because the plaintiff was within the zone of danger of the negligence in question. A person is within the zone of danger only if placed at immediate risk of physical harm or immediately threatened with physical injury by the defendant's negligent conduct.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Omaha, Dana Mercer was driving her sedan through an intersection when a delivery van ran a red light and clipped the front corner of her car. Dana was not physically injured, but she immediately believed she was about to be struck head-on and later developed medically diagnosed severe anxiety and posttraumatic stress symptoms.

If Dana sues the van driver for negligent infliction of emotional distress without alleging any physical impact injury to herself, which is the strongest basis for recovery under the governing rule?

Explanation. Where the plaintiff has no physical injury, recovery for negligent infliction of emotional distress is limited to two categories: an intimate-familial bystander or a direct victim within the zone of danger. A person is within the zone of danger when immediately threatened with physical injury or placed at immediate risk of bodily harm by the defendant’s negligence. Because Dana herself was in the collision path and feared imminent impact, she fits the direct-victim category. Foreseeability alone is insufficient, familial relationship is unnecessary for a direct victim, and physical injury is not required if the plaintiff was in the zone of danger. (Derived from Catron v. Lewis (n.d.).)