Courts upholding and those courts denying bystander recovery agree that concern over fraud is without justification. In the Fourth Count of her complaint, Mrs.
The second level of the argument posited by the New York court in Tobin concerns the possibility of unduly burdensome liability. Likewise, Justice Andrews, in his famous dissent in Palsgraf v. Most of the cases can be found in Annot. McNally, Pittsburgh, for appellee. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality.
As Judge Spaeth has noted, "The criteria suggested by Prosser and adopted in Dillon are not reasoned but arbitrary, for they are unsupported on any policy capable of uniform application.
The Leong court attempted to achieve an objective standard by defining serious mental distress as being properly found where a reasonable person "normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances" of the event.
The essential fact before us is an excavation made by the defendants in a public highway in a residential area. Is there any way to judge whether his emotional distress "resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident" or from "learning of the accident from others after its occurrence.
The risks of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. An instruction that neither defendant was an insurer of the safety of the public but was required only to use reasonable or ordinary care, cannot reasonably be said to have conveyed the idea to the jury that neither had liability insurance coverage.
We think no error occurred in this connection. If plaintiff witnessed the negligent infliction of an injury to a member of his or her immediate family and suffered emotional harm as a result, to deny recovery merely because plaintiff was not subjected to the same risk of injury as his or her spouse, child or parent is unjust.
This right was a new and independent right given by positive law not cast upon them by survivorship as for an injury to the decedent. But here a jury is permitted to say that the water hole in the street imposes no duty of care upon these defendants.
See also, Leong v. We obviously do not accept the "too much work to do" rationale. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law.
That court upheld the right of a father and mother to recover damages for the shock and fright they incurred from witnessing the death of their young son in a traffic accident.
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