1 Elements and Case Citations
Under New York law, a plaintiff may establish such a claim in one of two ways: (1) the “bystander” theory; or (2) the “direct duty theory.”
Direct Duty Theory:
- The defendant breached a duty of care to the plaintiff;
- The defendant (a) unreasonably endangered the plaintiff’s physical safety or (b) caused the plaintiff to fear for his or her safety;
- The defendant’s conduct was extreme and outrageous; and
- The plaintiff suffered extreme emotional distress.
Bystander/Zone of Danger Theory:
- The defendant unreasonably exposed the plaintiff and an immediate family member to physical harm;
- The plaintiff witnessed the serious injury or death of the family member;
- The plaintiff suffered emotional harm; and
- The defendant’s conduct was a substantial factor in causing the injury or death of the family member.
Subscribers To The New York Litigation Guide Can See:
- The rest of the elements for this cause of action;
- The citations to the most recent state and federal court cases citing the cause of action;
- The statute of limitations; and
- The defenses to this cause of action.