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Graves v. Estabrook3/3/2003
. Davis, 300 N.W.2d 104, 107 (Iowa 1981); State v. Eaton, 710 P.2d 1370, 1375 (Nev. 1985); Clohessy v. Bachelor, 675 A.2d 852, 862 n. 11 (Conn. 1996) (all citing Corso's traditional approach with approval).
We adopted the test first enunciated in Dillon v. Legg, 441 P.2d 912 (Cal. 1968), in which the California Supreme Court set forth three factors for determining whether a defendant should reasonably foresee injury to a bystander:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Dillon v. Legg, 441 P.2d at 920.
Dillon noted that these three factors are not a rigid framework but "contemplate that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen." Id. at 921.
This case requires us to examine the scope of Dillon's third factor. The defendant argues that we should continue to follow the California Supreme Court and adopt its subsequent holding in Elden v. Sheldon, 758 P.2d 582 (Cal. 1988). There, the court held that unmarried cohabitants are not "closely related" and cannot recover for negligent infliction of emotional distress. Id. at 588. Other courts have adopted the same rule. See Ferretti v. Weber, 513 So. 2d 1333 (Fla. Dist. Ct. App. 1987); Sollars v. City of Albuquerque, 794 F. Supp. 360, 363 (D.N.M. 1992); Hastie v. Rodriguez, 716 S.W.2d 675, 676 (Tex. App. 1986). See generally Annotation, Relationship Between Victim And Plaintiff–Witness As Affecting Right To Recover Under State Law For Negligent Infliction Of Emotional Distress Due To Witnessing Injury To Another Where Bystander Plaintiff Is Not Member Of Victim's Immediate Family, 98 A.L.R.5th 609 (2002); Note, It's All Relative: A Graphical Reasoning Model For Liberalizing Recovery For Negligent Infliction Of Emotional Distress Beyond The Immediate Family, 30 Val. U. L. Rev. 913, 917 (1996) [hereinafter cited as Note].
As noted by the New Jersey Supreme Court in Dunphy v. Gregor, 642 A.2d 372, 375 (N.J. 1994), "the [California Supreme Court] in Elden was reacting to the experience of the California courts with bystander liability under the Dillon standard." After Dillon, California courts had significantly expanded the scope of bystander liability. For instance, the supreme court had held that a plaintiff need not visually perceive the injury to the third party. See Krouse v. Graham, 562 P.2d 1022, 1031 (Cal. 1977). Other California courts had held that arriving soon after the accident was sufficient to satisfy the first two prongs of Dillon. See, e.g., Nazaroff v. Super. Ct. In And For Cty. Of Santa Cruz, 145 Cal. Rptr. 657, 664 (Ct. App. 1978); Archibald v. Braverman, 79 Cal. Rptr. 723 (Ct. App. 1969). The courts had also broadly interpreted the "closely related" factor. See Mobaldi v. Board of Regents of University of Cal., 127 Cal. Rptr. 720, 726-27 (Ct. App. 1976); see also Ledger v. Tippitt, 210 Cal. Rptr. 814, 824-28 (Ct. App. 1985). Thus, one reason for the holding in Elden was a need to rein in the expansion of bystander liability in California.
There has been no comparable expansion of the scope of bystander liability in New Hampshire. Indeed, in Corso, we emphasized the limits of bystander liability.
Plaintiff'
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