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CLOHESSY v. BACHELOR5/21/1996
v. Parsons, supra, 638 A.2d 1052; Kinard v. Augusta Sash & Door Co., 286 S.C. 579, 583, 336 S.E.2d 465 (1985); Heldreth v. Marrs, supra, 188 W. Va. 488; or by viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition. Gain v. Carroll Mill Co., supra, 114 Wn.2d 261 ("A defendant has a duty to avoid the negligent infliction of emotional distress. However, this duty does not extend to those plaintiffs who have a claim for mental distress caused by the negligent bodily injury of a family member, unless they are physically present at the scene of the accident
or arrive shortly thereafter. Mental distress where the plaintiffs are not present at the scene of the accident and/or arrive shortly thereafter is unforeseeable as a matter of law."); Gates v. Richardson, 719 P.2d 193, 198-99 (Wyo. 1986) (plaintiff who observes infliction of serious bodily harm or death, or observes serious bodily harm or death shortly after its occurrence but without material change in condition or location of victim can recover under tort of negligent infliction of emotional distress); see Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986); Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989); Lejeune v. Rayne Branch Hospital, supra, 556 So.2d 559; Dziokonski v. Babineau, supra, 375 Mass. 555; James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); General Motors Corp. v. Grizzle, 642 S.W.2d 837 (Tex. App. 1982); Bowen v. Lumbermens Mutual Casualty Co., 183 Wis.2d 627, 517 N.W.2d 432 (1994).
Third, the injury to the victim must be substantial, resulting in either death or serious physical injury. Lejeune v. Rayne Branch Hospital, supra, 556 So.2d 570
(" he direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the plaintiff's position would suffer serious mental anguish from the experience"). Any injury to one who is closely related to the bystander has an emotional impact. To a sensitive parent, witnessing a minor injury to his or her child could produce an emotional response and result in serious injury. Nevertheless, under those circumstances, a cause of action for bystander emotional distress will not lie. "While any harm to a spouse or a family member causes sorrow, we are here concerned with a more narrowly confined interest in mental and emotional stability. When confronted with accidental death [or serious injury] the reaction to be expected of normal persons . . . is shock and fright." (Citations omitted; internal quotation marks omitted.) Portee v. Jaffee, supra, 84 N.J. 100. Although the tortfeasor takes his victim as he finds him or her; Hopson v. St. Mary's Hospital, supra, 176 Conn. 493; D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 171, p. 485; it is essential that the liability for bystander emotional distress be circumscribed.
Finally, the plaintiff bystander must have sustained a serious emotional injury — that is, "a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance." Thing v. La Chusa, supra, 48 Cal.3d 668; see Ramirez v. Armstrong, 100 N.M. 538, 542, 673 P.2d 822 (1983); Paugh v. Hanks, 6 Ohio St.3d 72, 78, 451 N.E.2d 759 (1983); Sinn v. Burd, supra, 486 Pa. 168. This injury may be purely emotional and need not manifest itself physically. See Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980) (" plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclus
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