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:

1. The defendant breached a duty of care to the plaintiff;
2. The defendant (a) unreasonably endangered the plaintiff’s physical safety or (b) caused the plaintiff to fear for his or her safety;
3. The defendant’s conduct was extreme and outrageous; and
4. The plaintiff suffered extreme emotional distress.

Bystander/Zone of Danger Theory:

1. The defendant unreasonably exposed the plaintiff and an immediate family member to physical harm;
2. The plaintiff witnessed the serious injury or death of the family member;
3. The plaintiff suffered emotional harm; and
4. The defendant’s conduct was a substantial factor in causing the injury or death of the family member.

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