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Kallstrom v. United States3/15/2002
nt while another's involvement may be completely involuntary and unthinking. Each difference will contribute in important ways to the plaintiff's feelings of guilt and will control the emotional distress.
Our existing exceptions to the NIED rule's requirement of physical injury define combinations of factors that we consider to be useful and reliable in identifying claims involving foreseeable danger of serious emotional harm - factors such as physical or temporal proximity of the plaintiff to the infliction of the victim's injury and the relationship between the participant and the victim. But we do not think that the broad range of situations encompassed by the term "unwitting instrument" would be useful in the same way.
Kallstrom's case is compelling because she comes close to so many of the relevant factors for establishing NIED in the absence of physical injury . However, she fails to plead an existing cause of action because her personal relationship to Lori Dee is not close enough and the government owed her no pre-existing duty. Yet even assuming that the other requirements of the bystander exception remained, we would decline to accept unwitting instrument status - that is, mere innocent presence in the causal chain - as a substitute for the existing requirement of close personal relationship. Such a factor is so variable that it does not meaningfully distinguish between claims that should be allowed and those that should not.
V. CONCLUSION
We hold that a claim of NIED in the absence of physical injury is not available to a plaintiff solely because she or he is made the unwitting instrument of death or serious injury to another through the negligence of the defendant.
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