Philibert v. Kluser ( 2016 )

698 December 22, 2016 No. 79
IN THE SUPREME COURT OF THE
STATE OF OREGON
Stacie PHILIBERT,
in her capacity as guardian ad litem for
Cameron Hollenbeck-Hatch and
Domanick Hollenbeck-Hatch,
Petitioners on Review,
v.
Dennis Dixon KLUSER,
Respondent on Review.
(CC 13CV01410, CA A156192, SC S063738)
On review from the Court of Appeals.*
Argued and submitted September 19, 2016.
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for the petitioners on review. Also on the briefs was
Tim Williams, Bend.
Flavio A. Ortiz, Lachenmeier Enloe Rall & Ortiz,
Portland, argued the cause and filed the brief for the respon-
dent on review. Also on the briefs was Martin M. Rall.
Cody Hoesly, Larkins Vacura LLP, Portland, filed the
brief for amicus curiae Oregon Trial Lawyers Association.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and Rebecca
A. Duncan, Judge of the Court of Appeals, Justice pro
tempore.**
BALMER, C. J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
**  Appeal from Jefferson County Circuit Court, Gary Lee Williams, Judge.
274 Or App 195, 361 P3d 610 (2015)
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 360 Or 698 (2016) 699
Case Summary: Plaintiffs watched a negligent driver hit and kill their
brother and sought to recover for their emotional distress in a negligence action.
The trial court followed the “impact rule” of Saechao v. Matsakoun, 78 Or App
340, 717 P2d 165, rev dismissed, 302 Or 155 (1986), and dismissed the case and
the Court of Appeals affirmed. Held: (1) Plaintiffs have a legally protected inter-
est in not witnessing the negligent death of their brother and (2) plaintiffs there-
fore stated a claim upon which relief could be granted.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
700 Philibert v. Kluser
BALMER, C. J.
This case requires us to consider the circumstances,
if any, under which damages may be recovered by a bystander
who suffers serious emotional distress as a result of observ-
ing the negligent physical injury of another person. Plaintiffs
witnessed the death of a family member who was run over
by a truck, but were not themselves physically injured.1 They
sought recovery for their emotional distress. The trial court
dismissed the action and the Court of Appeals affirmed,
both relying on the “impact rule.” Philibert v. Kluser, 274
Or App 195, 361 P3d 610 (2015). The impact rule allows a
plaintiff to seek damages for negligently caused emotional
distress only if the plaintiff can show some physical impact
to himself or herself, thus precluding the claims brought by
plaintiffs in this case. For the reasons that follow, we con-
clude that plaintiffs should be able to pursue their claims
notwithstanding the fact that they did not themselves suf-
fer physical injury. We therefore reverse the decision of the
Court of Appeals and the judgment of the circuit court, and
remand the case to the trial court.
I.  FACTS AND PROCEEDINGS BELOW
Because plaintiffs appeal a judgment dismissing
their complaint for failure to state a claim, ORCP 21 A(8), we
take as true the facts alleged in the complaint. Plaintiffs are
two brothers, aged eight and 12, who were crossing a street
in a crosswalk with the walk signal with their seven-year-
old younger brother. Defendant negligently drove his pickup
truck through the crosswalk, running over the youngest boy
and narrowly missing the other two. The brother who was
struck died at the scene. The two surviving brothers wit-
nessed their brother’s death and experienced serious emo-
tional injuries as a result.
Plaintiffs filed this action against the driver, alleg-
ing negligence and seeking compensation for their emotional
injuries. Their injuries include severe emotional distress,
depression, post-traumatic stress disorder, aggression, and
severe anxiety. Defendant moved to dismiss their complaint
1
For the purposes of this opinion, “plaintiffs” refers to the two minors who
are represented in this litigation by their guardian ad litem.
Cite as 360 Or 698 (2016) 701
for failure to state a claim upon which relief could be granted,
arguing that, as bystanders who had not been physically
injured by defendant, they could not recover for their emo-
tional distress. The trial court granted that motion, applying
the “impact rule” announced in Saechao v. Matsakoun, 78
Or App 340, 717 P2d 165, rev dismissed, 302 Or 155 (1986),
and plaintiffs appealed. The Court of Appeals affirmed the
trial court’s dismissal, also citing Saechao. Philibert, 274 Or
App 195.
In Saechao, the Court of Appeals confronted a sit-
uation factually similar to the present case. A driver negli-
gently drove a car onto a sidewalk, killing one child, strik-
ing a sibling, and leaving two additional siblings untouched.
Saechao, 78 Or App at 342-43. The three surviving children
sued to recover for the emotional distress caused by wit-
nessing their brother’s death. Id. at 343. The court recog-
nized the case as presenting a question of first impression of
“when a person who witnesses the negligently caused injury
or death of a member of the immediate family may recover
damages for serious emotional distress resulting from wit-
nessing the accident.” Id. at 342. A divided, en banc court
adopted the impact rule, “requiring that there be a direct
accompanying [physical] injury to the person who suffers
the emotional distress as a prerequisite to its compensabil-
ity.” Id. at 346. As a result, the child who was physically
injured was permitted to seek emotional distress damages
caused by witnessing his brother’s death, but the claims by
the two siblings who were not physically injured were dis-
missed. Judge Warren, writing for four judges, dissented.
Id. at 348. The two children who were not injured, and thus
had no claim, petitioned this court for review. We allowed
review, but the case was settled and the petition for review
dismissed. Saechao, 302 Or at 156. The Court of Appeals
has continued to follow the impact rule in subsequent cases,
as it did here. See, e.g., Sherwood v. ODOT, 170 Or App 66,
77-78, 11 P3d 664, rev den, 331 Or 692 (2000). We directly
address the bystander recovery issue here for the first time.
II. ANALYSIS
Plaintiffs urge us to abandon the impact rule and
adopt in its place a rule that allows them to recover damages
702 Philibert v. Kluser
for their emotional distress without showing any physical
harm to themselves. They suggest a “zone of danger” rule
or a foreseeability-based rule. Although we agree that the
impact test should not control bystander recovery, we do
not adopt either of their suggested alternatives. Instead,
for the reasons discussed below, we conclude that the rule
articulated in the Restatement (Third) of Torts section 48
(2012) best promotes principled outcomes while avoiding
the prospect of imposing potentially unlimited liability on
defendants for the emotional distress that their negligence
may cause. We begin our discussion by reviewing our exist-
ing case law regarding recovery of damages for negligent
infliction of emotional distress and the role that foreseeabil-
ity has in those claims. We then consider whether a claim for
recovery of those damages in the circumstances presented
here—where the plaintiff witnesses the negligently caused
traumatic injury or death of a close family member—is
consistent with our case law and should be recognized as
a common law tort claim. Answering that question in the
affirmative, we evaluate several tests for recovery in such
circumstances that have been used by other courts, rejecting
the impact rule adopted by the Court of Appeals in Saechao
and plaintiffs’ proposed zone of danger rule and adopting
instead the test set out in section 48 of the Restatement.
Finally, we apply the Restatement test to the facts of this
case.
A.  The Norwest Framework
In Norwest v. Presbyterian Intercommunity Hosp.,
293 Or 543, 558-61, 652 P2d 318 (1982), we mapped the
landscape of cases addressing claims for emotional distress
damages and explained the framework that guides recov-
ery for those injuries. Oregon allows plaintiffs to recover
damages for emotional distress when they are physically
injured, see id. at 558, and when the defendant acted inten-
tionally, id. at 559 (citing Hall v. The May Dept. Stores, 292
Or 131, 637 P2d 126 (1981)). At issue here is a third basis
recognized in Norwest for recovery of damages for emo-
tional distress: when a defendant negligently causes fore-
seeable, serious emotional distress and also infringes some
other legally protected interest. Norwest, 293 Or at 559. The
plaintiff’s claim in that circumstance partially resembles
Cite as 360 Or 698 (2016) 703
a common-law negligence claim in that it rests on the con-
cept of foreseeability. Norwest made clear, however, that the
injury’s foreseeability, standing alone, is insufficient to
establish the defendant’s liability: there must also be another
“legal source” of liability for the plaintiff to recover emotional
distress damages. Norwest, 293 Or at 569 (explaining that
liability for emotional distress must have “a legal source
besides its foreseeability”). Those two concepts identified in
Norwest—foreseeability and the source of a legally protected
interest—guide our analysis in this case.
Perhaps the simplest legally protected interest is
that to be “free from physical harm at the hands of another.”2
Gaston v. Parsons, 318 Or 247, 255 n 8, 864 P2d 1319 (1994).
In the context of that general interest to be free from phys-
ical harm, a defendant is liable to a plaintiff for damages
resulting from the defendant’s conduct that “unreasonably
created a foreseeable risk * * * of the kind of harm that
befell the plaintiff.” Fazzolari v. Portland School Dist. No.
1J, 303 Or 1, 17, 734 P2d 1326 (1987); see also Piazza v.
Kellim, 360 Or 58, 69-72, 377 P3d 492 (2016) (discussing
elements of negligence claim). In addition to foreseeability’s
role in determining community standards for “blameworthi-
ness” and liability, Fazzolari, 303 Or at 12, foreseeability is
a pragmatic limit on liability for negligently caused physi-
cal harm because of the relative scarcity of physical injury,
compared with emotional harm. See id. at 13 (identifying
foreseeability as “a limit on the scope of liability”).
In contrast to physical harms, emotional harms
occur frequently. Fowler V. Harper, Fleming James, Jr. &
Oscar S. Gray, 3 Harper, James and Gray on Torts § 18.4,
812 (3d ed 2007) (“The zone of psychic danger is more exten-
sive than the zone of the foreseeable hazard of physical
impact.”). Any number of people may suffer emotional dis-
tress as the foreseeable result of a single negligent act. The
Restatement provides an example: “a negligent airline that
causes the death of a beloved celebrity can foresee genuine
emotional harm to the celebrity’s fans, but no court would
2
Labeling freedom from physical harm as a legally protected interest for
purposes of recovering emotional distress damages under the third category out-
lined in Norwest is simply a different way of stating the general rule that emo-
tional distress damages are available to a plaintiff who is physically injured.
704 Philibert v. Kluser
permit recovery for emotional harm under these circum-
stances.” Restatement § 48 comment g. For that reason, fore-
seeability, standing alone, is not a useful limit on the scope
of liability for emotional injuries. In Harris v. Suniga, 344
Or 301, 180 P3d 12 (2008), this court explained that allow-
ing recovery for economic loss on the basis of foreseeability,
without requiring more, would invite, in the words of Judge
Cardozo, “liability in an indeterminate amount for an inde-
terminate time to an indeterminate class.” Id. at 308 (quot-
ing Ultramares Corporation v. Touche, 255 NY 170, 179, 174
N.E. 441, 444 (1931) (emphasis omitted)); see also Ore-Ida
Foods v. Indian Head, 290 Or 909, 917, 627 P2d 469 (1981)
(discussing “practically limitless” claims for consequential
economic injury). Emotional distress, like economic loss, rip-
ples throughout society as a foreseeable result of negligent
conduct. Without some limiting principle in addition to fore-
seeability, permitting recovery for emotional injuries would
create indeterminate and potentially unlimited liability.
As a result, if we were to recognize a legally pro-
tected interest against all negligently caused emotional
harms, then foreseeability would no longer serve as an effec-
tive limit on liability. Nevertheless, even where a plaintiff
has not been physically harmed, recovery for foreseeable
emotional damages is available when the defendant’s con-
duct “infringed some legally protected interest apart from
causing the claimed distress[.]”3 Norwest, 293 Or at 559. In
the context of emotional distress, a legally protected inter-
est is “ ‘an independent basis of liability separate from the
general duty to avoid foreseeable risk of harm.’ ” Lockett v.
Hill, 182 Or App 377, 380, 51 P3d 5 (2002) (quoting Phillips
3
Another way to compare negligence claims for physical and emotional injury
is to contrast the extent of legal protection from physical harm with the extent of
legal protection from emotional harm. A person’s physical well-being is broadly
protected: almost any kind of physical injury or even touching can be actionable.
In contrast, a person’s emotional well-being is not subject to general protection
under the law. Courts and legislatures, however, have identified certain circum-
stances in which emotional well-being is legally protected. Examples include
emotional harm resulting from invasion of privacy, Hinish v. Meyer & Frank Co.,
166 Or 482, 113 P2d 438 (1941), or disinterment of the body of a spouse, Hovis v.
City of Burns, 243 Or 607, 415 P2d 29 (1966). As discussed, a plaintiff seeking to
recover for negligent infliction of emotional distress must identify the invasion of
an interest that is or should be legally protected, and must also allege the facts
otherwise necessary to support a negligence claim. See Norwest, 293 Or at 569.
Cite as 360 Or 698 (2016) 705
v. Lincoln County School District, 161 Or App 429, 433, 984
P2d 947 (1999)). The right to recovery for such injuries does
not “arise from infringement of every kind of legally pro-
tected interest, but from only those that are ‘of sufficient
importance as a matter of public policy to merit protection
from emotional impact.’ ” Id. (quoting Hilt v. Bernstein, 75
Or App 502, 515, 707 P2d 88 (1985), rev den, 300 Or 545
(1986)). For example, the invasion of a person’s privacy will
not always support a claim for emotional injury, because the
nature and context of the invasion influences the extent to
which privacy is legally protected and can be the basis for
a successful emotional distress claim. Compare Anderson v.
Fisher Broadcasting Co., 300 Or 452, 712 P2d 803 (1986)
(denying claim for emotional distress resulting from televi-
sion station’s use of image of plaintiff as stock footage in
unrelated news story) with Hinish v. Meyer & Frank Co., 166
Or 482, 506, 113 P2d 438 (1941) (allowing claim for emo-
tional distress when plaintiff’s name was signed without his
consent on a telegram to the governor).
Among other circumstances, this court recognizes a
plaintiff’s legally protected interest when another party has
a legal duty “designed to protect plaintiff[ ] against the type
of harm which * * * occurred.” Nearing v. Weaver, 295 Or 702,
708, 670 P2d 137 (1983). For example, in McEvoy v. Helikson,
277 Or 781, 562 P2d 540 (1977), the court upheld a father’s
claim for emotional damages against a lawyer who delivered
a passport to the mother that resulted in the mother leaving
the country with the couple’s child. The lawyer had violated
a court order to keep the passport until the father had cus-
tody of the child. Id. at 784. The reviewing court concluded
that when the judge issued that order, it was “foreseeable
that [the mother] might * * * take [the child] with her back
to Switzerland” and that “the primary purpose” of the order
was to “protect plaintiff against the happening of that very
danger.” Id. at 788.
Similarly, in Nearing, the plaintiff stated a claim
for recovery of emotional distress damages when she alleged
that police officers violated a statutory duty to arrest her
ex-spouse, who later threatened her. 295 Or at 707. The
legally protected interest in that case was created by a
statute designed to protect victims of domestic abuse. Id.
706 Philibert v. Kluser
at 709 (“The widespread refusal or failure of police officers
to remove persons involved in episodes of domestic vio-
lence was * * * the main reason * * * to require enforcement
of restraining orders by mandatory arrest * * *.”). In other
words, “the risk, the harm, and the potential plaintiff were
all foreseen by the lawmaker.” Id. at 708-09. In both McEvoy
and Nearing, the plaintiff’s successful claim for emotional
distress damages rested on the defendant’s violation of a
legally protected interest, which in turn originated from a
legal duty designed to protect the plaintiff from the type of
emotional harm that occurred.
In addition to court order and statute, common law
also can be the source of a legally protected interest capable
of supporting a claim for recovery of emotional distress. See,
e.g., Macca v. General Telephone Co. of N.W., 262 Or 414,
418, 495 P2d 1193 (1972) (allowing claim for emotional dam-
ages on the basis of infringement of right to be free from
private nuisance); Hovis v. City of Burns, 243 Or 607, 613,
415 P2d 29 (1966) (allowing claim for emotional damages
on the basis of infringement of right of a surviving spouse
to have the remains of a deceased spouse undisturbed); cf.
MT & M Gaming, Inc. v. City of Portland, 360 Or 544, 562,
383 P3d 800 (2016) (noting, in a different context, that “[a]s
a general proposition, legal recognition can come from many
sources—statutes, constitutional provisions, regulations,
local ordinances, and the historical and evolving common
law”).
In contrast, this court has denied recovery to plain-
tiffs for emotional injuries resulting from a defendant’s neg-
ligence when there is no independent legal source of liability.
See, e.g., Norwest, 293 Or at 568-69 (denying child’s claim for
“loss of his mother’s society and companionship” because the
defendant’s liability “had no legal source besides its foresee-
ability”); Hammond v. Central Lane Communications Center,
312 Or 17, 24, 819 P2d 593 (1991) (denying recovery to wife
who claimed emotional injury caused by watching husband
die from heart attack while 9-1-1 system negligently delayed
response because she had not “point[ed] to some legally
protected interest of hers that defendants violated” (inter-
nal quotation omitted)); Anderson, 300 Or at 469 (denying
recovery to plaintiff whose image was used in television
Cite as 360 Or 698 (2016) 707
news story because he had not shown that “the manner
or purpose of defendant’s conduct [was] wrongful in some
respect apart from causing the plaintiff’s hurt feelings”).
We now turn to the bystander’s claim for negli-
gently inflicted emotional distress. Plaintiffs assert the vio-
lation of two legally protected interests that they contend
are sufficient to support their negligence claims: the right
to avoid emotional injury caused by violations of traffic laws
and the common law right of a bystander to avoid observing
the physical injury of a close family member.4 This court has
not had occasion to previously consider such a “bystander
claim.” Norwest, 293 Or at 559 n 18 (“We have not had occa-
sion to examine the bystander’s claim for psychic injury
from witnessing a negligent physical injury to a close rela-
tive * * *.”). Our prior cases, however, have allowed claims for
negligently inflicted emotional distress to proceed when the
court has determined that an asserted common law interest
is sufficiently important to support the imposition of liabil-
ity. The negligent handling of a spouse’s remains in Hovis
and the particular invasion of privacy at issue in Hinish—
an unauthorized telegram to the Governor falsely stating
the plaintiff’s support for particular legislation—are exam-
ples. In our view, the interest in avoiding being a witness to
the negligently caused traumatic injury or death of a close
family member is similarly important. Witnessing sudden
physical injury or death is a palpable and distinct harm, dif-
ferent in kind even from the emotional distress that comes
with the inevitable loss of our loved ones. Plaintiffs here
watched as their younger brother was crushed by a pickup
truck—a violation of their interest in not witnessing such a
shocking and tragic event. And the resulting impact on them
might be described as the emotional equivalent of a physical
injury. As Prosser and Keeton observe, following Dillon v.
Legg, 68 Cal 2d 728, 441 P2d 912 (1968) and similar cases,
it is “obvious” and favored by “[a]ll ordinary human feel-
ings” that the damages for emotional distress of a mother
4
Because we conclude that plaintiffs have alleged a legally protected com-
mon law interest that is sufficient under Norwest to support their claim for emo-
tional distress in these circumstances, we do not address their alternative argu-
ment that Oregon’s traffic laws establish a “legally protected interest” on the part
of persons who suffer emotional injury when another person violates those laws.
708 Philibert v. Kluser
seeing her child injured should be recoverable in negligence.
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David
G. Owen, Prosser and Keeton on the Law of Torts § 54, 366
(5th ed 1984). We have no difficulty concluding that plain-
tiffs have alleged the violation of a legally protected common
law interest to be free from the kind of emotional distress
injury caused by defendant’s negligence here.
Our remaining task is to frame the contours of
that interest and identify the elements that will allow a
bystander to recover for the negligent infliction of emotional
distress, while also providing a limiting principle that will
avoid potentially unlimited claims or damages.5 To do so,
we consider three tests that courts commonly have used in
similar cases: the impact test, the zone of danger test, and
the Restatement approach.
B.  The Impact Test
The impact rule allows a plaintiff to recover for emo-
tional distress when he or she also has suffered a physical
injury. The Court of Appeals in Saechao applied that gen-
eral rule to bystander cases, ruling that a bystander could
not recover for emotional distress unless there is “direct
accompanying [physical] injury to the person who suffers
the emotional distress.” 78 Or App at 346. Proponents of the
impact rule claim that its merit lies in the bright line test
for liability that it creates, id. at 348 (describing the impact
test as providing a clear line and creating a “clear relation-
ship between compensability and the plaintiff’s being a vic-
tim of a breach of duty”); the clean question of proof that
it presents, Keeton et al, Prosser and Keeton on the Law of
Torts § 54, 364 (describing the impact test’s “true value” as
“the opportunity which is afforded to the defendant to testify
that there was in fact no impact”); and as a “guarantee that
the mental disturbance is genuine,” Wilson v. Tobiassen, 97
Or App 527, 532, 777 P2d 1379, rev den, 308 Or 500 (1989)
(internal quotation omitted).
5
The Restatement notes that courts in states that allow recovery on the basis
of foreseeability alone have had to resort to the “artificial manipulation of fore-
seeability” to avoid potentially “excessive and unworkable liability” for emotional
distress claims. Restatement § 48 Reporters Note comment g (citing Colbert v.
Moomba Sports, Inc., 163 Wash 2d 43, 176 P3d 497 (2008) (illustrating strained
application of foreseeability)).
Cite as 360 Or 698 (2016) 709
The impact rule is problematic, however, because it
sets a bar to recovery in bystander cases that can be both too
high and too low. The bar is often too high because there is
no principled reason to deny recovery for negligently caused
emotional injury simply because the physical contact was
with a third person rather than the plaintiff. See Saechao,
78 Or App at 349-50 (Warren, J., dissenting) (“Under the
impact rule there is no causal, logical, or necessary rela-
tionship between the impact and the injury for which recov-
ery is sought.”). The facts of this case illustrate that point.
Plaintiffs witnessed the traumatic death of their brother,
but under the impact rule were denied recovery because the
truck did not touch them. Yet, their distress at witnessing
the death of their brother is likely unrelated to the coin-
cidental fact that the truck did not hit them also. To deny
recovery because a third person, rather than the plaintiffs,
was physically injured—when even a minor physical impact
is sufficient under that test—seems arbitrary and fails to
protect plaintiffs’ interest in avoiding witnessing the negli-
gently caused death of their brother.
At the same time, the impact rule sets the bar too
low in other circumstances, because a minor injury unre-
lated to the emotional distress satisfies the impact require-
ment and permits the claim to proceed. See id. at 343 (hold-
ing impact test satisfied by bruising). A review of the impact
rule as applied across jurisdictions reveals that the required
physical impact
“often play[s] no part in causing the real harm, and in
[itself has] no importance whatever. ‘Impact’ has meant a
slight blow, a trifling burn or electric shock, a trivial jolt
or jar, a forcible seating on the floor, dust in the eye, or the
inhalation of smoke. The requirement has even been satis-
fied by a fall brought about by a faint after a collision, or
the plaintiff’s own wrenching of her shoulder in reaction to
the fright. ‘The magic formula ‘impact’ is pronounced; the
door opens to full recovery.’ ”
Keeton et al, Prosser and Keeton on the Law of Torts § 54,
363-64 (internal citations omitted). In Oregon as well, the
application of the impact rule has led to subtle distinctions.
Compare Simons v. Beard, 188 Or App 370, 376-78, 379, 72
P3d 96 (2003) (allowing plaintiff to proceed with claim for
710 Philibert v. Kluser
emotional distress arising from concern about her unborn
child because the impact test was satisfied by her abnormal
delivery) with Chouinard v. Health Ventures, 179 Or App 507,
514, 39 P3d 951 (2002) (denying plaintiff recovery for emo-
tional distress because the presence of a tumor in her brain,
without evidence that it grew during the relevant period,
was insufficient “physical impact to permit plaintiff’s claims
* * * to go to the jury”).
The impact rule bars plaintiffs who have suffered
genuine serious emotional distress from recovering and
fails to treat like cases alike. In our view, those criticisms
are persuasive. Moreover, at least some of the purposes the
impact rule is supposed to serve—such as screening out
fraudulent claims and assisting parties, juries, and courts
by providing a bright-line rule—are fulfilled by various
aspects of the Restatement rule, as discussed below. Other
jurisdictions agree: the Restatement identifies Oregon as
one of only four states that continue to apply the impact
rule. Restatement § 48 Reporters Note comment a. Indeed,
the impact test has been disfavored for decades. See Richard
N. Pearson, Liability to Bystanders for Negligently Inflicted
Emotional Harm—A Comment on the Nature of Arbitrary
Rules, 34 U Fla L Rev 477, 488 n 68 (1982) (identifying four
states following the impact rule in 1982). We therefore reject
the impact rule as the test for a bystander’s recovery of emo-
tional distress resulting from injury to another.
C.  The Zone of Danger Test
Plaintiffs suggest that we permit their recovery
under the zone of danger test, which is used by some courts
to allow recovery to a plaintiff who experiences “serious
emotional distress due to witnessing a fatal injury to a third
person only if the plaintiff was personally within the zone of
danger of physical impact from the defendant’s negligence.”
Saechao, 78 Or App at 346. Although the zone of danger
test found some favor, see, e.g., Amaya v. Home Ice, Fuel &
Supply Co., 59 Cal 2d 295, 379 P2d 513 (1963) (adopting
test), California notably abandoned the zone of danger test
in Dillon, 68 Cal 2d at 728. In that case, a child’s sister,
standing close by, and her mother, standing down the block,
observed a negligent driver kill the child. Id. at 731. The
Cite as 360 Or 698 (2016) 711
court rejected the zone of danger rule and allowed both wit-
nesses to proceed with their claims for emotional distress.
Id. at 747-48. That court explained that rejecting the zone
of danger test logically follows rejecting the impact test
“because the only reason for the requirement of presence in
that zone lies in the fact that one within it will fear the dan-
ger of impact.” Id. at 733 (emphasis in original). Neither test
actually relates to the likelihood or severity of the emotional
distress that can result from seeing a close family member
suffer serious injury.
In practice, the zone of danger test results in
unfairly denying recovery to plaintiffs who are located out-
side the zone of physical danger, but witness the physical
injury to the third person just the same as if they had been
in that zone, as the facts of Dillon demonstrate. See Saechao,
78 Or App at 348 (“[T]he zone of danger rule * * * would not
provide rational differentiations between those who may
and those who may not recover.”). We are persuaded by the
reasoning of the California Supreme Court in Dillon and
decline to adopt the zone of danger test.
D.  The Restatement Rule
A number of authorities have attempted to articu-
late a test for bystander recovery that avoids the somewhat
arbitrary aspects of the impact and zone of danger tests,
while limiting the potential for indeterminate and exces-
sive liability for emotional distress claims that we discussed
above. Probably the most thoughtful recent formulation is
found in the Restatement section 48, which builds on Dillon
and similar cases. Under that approach, a defendant “who
negligently causes sudden serious bodily injury to a third
person is subject to liability for serious emotional harm
caused thereby to a person who (a) perceives the event con-
temporaneously, and (b) is a close family member of the per-
son suffering the bodily injury.” Restatement § 48 (“Negligent
Infliction of Emotional Harm Resulting from Bodily Harm
to a Third Person”). In our view, that test hews closely to
the interest that should be legally protected—that is, the
circumstances in which recovery for negligently caused emo-
tional distress is favored by “[a]ll ordinary human feelings,”
Keeton et al, Prosser and Keeton on the Law of Torts § 54,
712 Philibert v. Kluser
366—while also recognizing necessary limits on potential
liability and providing at least some guidance to courts and
juries. Moreover, the Restatement test is generally consis-
tent with this court’s cases dealing with other aspects of
claims for negligently caused serious emotional distress. We
turn to a closer examination of the rule articulated in the
Restatement.
The bystander recovery rule reflects a common
understanding that the injury of another person creates a
risk, that is reasonably likely to be realized, of causing a
reasonable bystander to suffer serious emotional distress
when certain factors are present. Thing v. La Chusa, 48 Cal
3d 644, 666, 771 P2d 814, 828 (1989) (“[I]n common experi-
ence, it is more likely that [persons closely related by blood or
marriage] will suffer a greater degree of emotional distress
than a disinterested witness to negligently caused pain and
suffering or death.”). In other words, the ability “to discrim-
inate between stimuli that would induce serious psychic
consequences in normally constituted people and those that
would do so only in people already peculiarly vulnerable * * *
turn[s] on the severity of the stimulus.” Harper et al, Harper,
James & Gray on Torts § 18.4, 812 (emphasis in original).
The elements of the bystander recovery rule reflect the con-
ditions that are likely to present a risk of serious emotional
distress that is reasonably likely to be realized.6
The first element is that the bystander must wit-
ness a sudden, serious physical injury to a third person negli-
gently caused by the defendant. Restatement § 48. Hammond
presented a situation in which that element was not pres-
ent. There, the plaintiff awoke to find her husband lying on
the floor, apparently the victim of heart attack. 312 Or at
20. The plaintiff sought to recover for her severe emotional
distress, alleging that if the defendant 9-1-1 service had
arrived in the “couple of minutes” that the 9-1-1 operator
predicted, rather than after the 45 minutes that actually
6
Compare this approach with the impact rule, which looks only to whether
the bystander suffered physical impact and not to the magnitude or significance
of any injury. The zone of danger rule similarly falls short in identifying the
aspects of a bystander experience that predict whether a reasonable person
would react with serious emotional distress. See Harper et al, Harper, James &
Gray on Torts § 18.4, 812 (so arguing).
Cite as 360 Or 698 (2016) 713
elapsed, she would not have suffered emotional distress. Id.
at 21. This court did not allow recovery. Id. at 28. Although
the defendant may have contributed to the death by failing
to respond quickly enough, the defendant did not cause the
actual physical injury—the heart attack.
Second, the plaintiff must have suffered serious
emotional distress. It is a truism that emotional distress
is an unavoidable and essential part of life. The California
Supreme Court explained that concept in the context of
bystander emotional injury:
“The emotional distress for which monetary damages may
be recovered, however, ought not to be that form of acute
emotional distress or the transient emotional reaction to
the occasional gruesome or horrible accident to which every
person may potentially be exposed in an industrial and
sometimes violent society. * * * The overwhelming majority
of ‘emotional distress’ which we endure, therefore, is not
compensable.”
Thing, 48 Cal 3d at 666-67. For that reason, our cases allow
compensation for only serious emotional distress. See Hall,
292 Or at 135 (noting that compensable emotional distress
is not the “kind of temporary annoyance or injured feelings
that can result from friction and rudeness among people in
day-to-day life”). A bystander who experiences emotional
harm that does not rise to the level of serious emotional dis-
tress, therefore, cannot recover for that harm.
Third, in order to recover, the plaintiff must have
perceived the events that caused injury to the third person
as they occurred. Restatement § 48(a). This contemporane-
ous perception is at the core of the bystander’s action for
damages. Observation of the scene of an accident after it
has happened, or perceiving a recently injured person, does
not meet this requirement. See id. at comment e (“It is not
enough that the person later learned about the events, later
viewed a recording of them, or later observed the resulting
bodily injuries.”). This bright line rule is justified in part
by the fact that the distressing life experience of learning
about the death or injury of a loved one is unavoidable. Its
inevitability means that “in a general way one is prepared”
for it. Ochoa v. Superior Court, 39 Cal 3d 159, 165 n 6, 703
P2d 1, 5 n 6 (1985). In comparison, the visceral experience
714 Philibert v. Kluser
of witnessing the sudden death or injury of a loved one by
a negligent driver, as here, is not a certain part of life and
therefore presents a stronger basis for allowing recovery
against the tortfeasor.
The final element of the claim is that the physically
injured person be a close family member of the plaintiff.
Restatement § 48(b). Witnessing the injury of a stranger or
acquaintance, while likely distressing, is not sufficient to
recover. As we recognized three decades ago, however, for-
mal legal relationships only imprecisely capture the real-
ity of emotional connections in our society. Norwest, 293 Or
at 561 (recognizing the “difficulties” with linking recovery
to formal relationships “in a society whose practices and
common assumptions about * * * relationships are rapidly
changing”); see also Leong v. Takasaki, 55 Haw 398, 410,
520 P2d 758, 766 (1974) (“Neither should the absence of a
blood relationship between victim and plaintiff-witness
foreclose recovery.”). The fraternal relationship of plaintiffs
here to the person killed meets that requirement, but other
cases may present closer questions as to the meaning of
“close family member.” See Restatement § 48 comment f (“[A]
grandparent who lives in the household may have a differ-
ent status from a cousin who does not.”).
We recognize that the bystander recovery rule out-
lined in the Restatement may give rise to the possibility of
false or inflated claims and that aspects of the rule may
seem arbitrary. For as long as courts have awarded dam-
ages for emotional injuries, there have been concerns about
plaintiffs bringing false claims. See Fehely v. Senders, 170
Or 457, 471, 135 P2d 283 (1943) (“[T]he danger that unscru-
pulous persons may impose on juries with fictitious claims
* * * is a practical argument to which courts rightly give
attention[.]”). Juries are charged with discerning truth from
self-serving fiction when plaintiffs testify about their own
injuries and are as competent to do this in claims for emo-
tional injuries as they are in other cases. Eisele v. Rood, 275
Or 461, 467, 551 P2d 441 (1976) (“In cases in which plain-
tiff’s evidence of injury is merely subjective in nature, the
jury may choose to disbelieve plaintiff’s testimony * * *.”).
Laws also may be structured to deter false claims by sympa-
thetic plaintiffs whose charisma may evoke inconsistent and
Cite as 360 Or 698 (2016) 715
unpredictable jury verdicts. See Libbee v. Permanente Clinic,
268 Or 258, 264, 518 P2d 636, reh’g den, 268 Or 273, 520
P2d 361 (1974) (“[I]f the common law has vitality it should
be elastic enough to provide safeguards against fraudulent
and speculative claims and to adapt itself to the facts of life
in our modern society.” (Citation omitted.)). The Restatement
rule performs this function by including elements that, on
the basis of human experience, are objective indicators of
possibly serious emotional injury. See Thing, 48 Cal 3d at
666 (stating that “in common experience, it is more likely”
that greater emotional distress will result when plaintiff
observes contemporaneous injury to a closely related per-
son). When the elements of the test are met, a plaintiff’s
claims of subjective emotional distress are more likely to be
genuine.7
The Restatement rule may have the effect of per-
mitting some claims that would be rejected under other
tests, and vice-versa. In this area of the law in particular,
some arbitrariness cannot be avoided. See Saechao, 78 Or
App at 348 (Warren, J., dissenting) (“The fact that a deci-
sion is arbitrary in some respects does not mean that it can-
not be principled.”); Thing, 48 Cal 3d at 666 (“[A]rbitrary
lines * * * limit the class of potential plaintiffs if emotional
injury absent physical harm is to continue to be a recover-
able item of damages in a negligence action.”); Restatement
§ 48 comment e (“There is an unavoidable arbitrariness to
the line-drawing in this area.”). But although the rule may
be arbitrary in some circumstances, it “serve[s] a function
and [is] neither random nor irrational.” Id. at comment g.
The undesirable arbitrary aspect of rules must be balanced
7
Similarly, the bystander recovery rule also works to screen out claims by
plaintiffs who react with serious emotional distress to common upsetting events
of life that would not provoke that response in a reasonable person. See Fehely v.
Senders, 170 Or 457, 475, 135 P2d 283 (1943) (“We adopt as a general rule which
should govern in cases of this sort the following * * *: ‘The extent and duration
of emotional distress produced by the tortious conduct depend upon the sensi-
tiveness of the injured person. The court, however, will not permit consideration
of disturbances which, conceding full weight to individuality, are wholly abnor-
mal and unreasonable.’ ” (Quoting Restatement (First) of Torts § 905 comment
i (1939).)). The factual conditions required for a plaintiff to recover provide an
objective basis to believe that the serious emotional distress that the plaintiff
alleges is genuine and a reaction that would be shared by a reasonable person in
the same situation.
716 Philibert v. Kluser
against the need to provide ex ante understanding of lia-
bility and assistance in the orderly administration of jus-
tice. See Thing, 48 Cal 3d at 664 (“We also weigh in the
balance the importance to the administration of justice of
clear guidelines under which litigants and trial courts may
resolve disputes.”).8
III. APPLICATION
We return to the facts of this case. Plaintiffs are
two brothers who watched their third brother die as a result
of being hit by defendant’s negligently driven pickup truck.
They allege emotional injuries, including depression and
severe emotional distress. Examined in the light of the
Restatement test set forth above, plaintiffs here state a neg-
ligence claim for recovery of emotional distress damage.
The complaint alleges that plaintiffs’ brother was killed as
a result of defendant’s negligence, that they saw the colli-
sion and watched their brother die, and that, as a result,
they have suffered severe emotional distress. Based on
those facts, plaintiffs’ complaint states a claim for relief for
bystander recovery under the Restatement test.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
8
The Restatement notes that 29 states apply some version of section 48.
Restatement § 48 Reporters Note comment a.