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Folz v. State8/8/1990
, not in any physical danger, could recover from the emotional shock of witnessing a person injured through the negligence of another. The Court began its analysis by listing the three rules that had been utilized by other jurisdictions to circumscribe the liability for negligent infliction of emotional distress to a bystander: (1) the "impact" rule, (2) the "zone of danger" rule, and (3) the Dillon rule.
Under the impact rule, liability for emotional distress due to witnessing injury to a third person exists only when the plaintiff also suffers physical injury from the same force that injured the third person. See Saechao v. Matsakoun, 78 Or. App. 340, 717 P.2d 165 (en banc) (adopting impact rule because it provides clear relationship between compensability and the plaintiff's status as a victim of a breach of duty), rev. dismissed, 302 Or. 155, 727 P.2d 126 (1986). But see Gates v. Richardson, 719 P.2d 193, 195 n.1 (Wyo. 1986) listing the numerous jurisdictions that have abolished the impact rule). The zone of danger rule would allow recovery if the plaintiff. personally was within the zone of danger of physical impact. See Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984); see also Restatement (Second) of Torts 436 (1965) (endorsing zone of danger rule). The Bovsun court held that a plaintiff may recover damages for injuries caused by witnessing serious injury or death of an immediate family member, when the defendant also negligently exposed the plaintiff to the same risk of bodily injury or death. 61 N.Y.2d at 230-31, 461 N.E.2d at 848, 473 N.Y.S.2d at 362.
In rejecting the limitations of both the impact and zone of danger rules, the court in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) (en banc), premised liability for negligent infliction of emotional distress on the foreseeability of the risk of injury . The Dillon court developed three factors to determine liability -- the plaintiff's proximity to the accident, contemporaneous observation of the accident, and relationship to the accident victim. Id. at 740-41, 441 P.2d at 920, 69 Cal. Rptr. at 80. The standards adopted in Ramirez were modeled upon these factors. Since Ramirez, at least one jurisdiction has eschewed even the restrictions of Dillon and would permit compensation of psychic injury simply on the basis of its reasonable foreseeability. Paul v. Hanks, 6 Ohio St. 3d 72, 451 N.E.2d 759 (1983).
The court in Paugh also rejected as artificial the requirement that there must be some manifestation of physical injury proximately related to the mental distress in order for the emotional injury to be compensable. The necessity that some sort of physical injury result from the emotional harm has been seen as a mechanism to ensure that the emotional distress is serious enough to be compensable. See, e.g., Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). In rejecting the requirement of physical manifestation, the Paugh court, 6 Ohio St. 3d at 77, 451 N.E.2d at 765, embraced the reasoning of Leong v. Takasaki, 55 Haw. 398, 403, 520 P.2d 758, 762 (1974):
Because other standards exist to test the authenticity of plaintiff's claim for relief, the requirement of resulting physical injury , like the requirement of physical impact, should not stand as another artificial bar to recovery, but merely be admissible as evidence of the degree of mental or emotional distress suffered.
Paugh focused on the seriousness of the emotional distress as a prerequisite for stating a claim for relief. It held emotional injury may be redressed if: (1) it were severe and debilitating, and (2) "a reasonable person, normally constituted, would be unable to cope adequatel
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