Bystander Recovery for Emotional Distress

Products Liability Law

Products liability is an area of law that deals with personal injury and property damage caused by defective products. A defective product is one that contains a design or manufacturing flaw. Manufacturers and sellers may be liable to users who are injured by a defective product.

Policy Considerations Underlying Strict Products Liability

Strict products liability (liability without regard to fault) is based on public policy considerations. The underlying policy is to shift the risk of loss from the injured party to the manufacturers or sellers of a defective product since they are better able to distribute the loss. The courts have recognized that the same policy considerations apply to an injured bystander. The manufacturer or seller can spread the loss arising from defective products better than an injured bystander can.

Extending Strict Products Liability to Bystanders

The courts have extended strict products liability to cover injuries to bystanders if the injuries were reasonably foreseeable. Some courts have concluded that bystanders should receive more protection than buyers or users of a product because bystanders have no opportunity to discover defects in the product. They are completely dependent on the manufacturer's or seller's implied warranty that the product is fit for its intended use. Bystanders who suffer physical injuries indirectly as a result of emotional shock have been allowed to recover damages from the manufacturer or seller. Of course, the bystander has to prove that the defect caused his or her injuries under a theory of strict products liability or breach of warranty.

Bystander's Burden of Proof

The bystander must prove several things in order to recover damages for serious emotional distress resulting from witnessing the injury or death of another person. As a general rule, the bystander has to be closely related to the injured party, has to observe the accident, and has to have been aware that the accident was causing injury. Some courts have held that a person who did not witness the accident is not barred from recovering damages for emotional distress. However, the fact that the person was not present at the accident is a factor to consider in determining the degree of emotional distress that was suffered and whether the stress was more than what a reasonable person would have been experienced.

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