I Just Witnessed A Horrific Accident – Can I Sue for Emotional Damages?
Submitted by New Jersey Civil Lawyer, Jeffrey Hark
In New Jersey, if you claim emotional damages because of someone else’s negligence caused you harm, all that needs to be proven is:
1) Defendant owed a duty of reasonable care to you
2) Defendant breached that duty
3) You suffered severe emotional distress; and
4) The Defendant’s breach of duty was the proximate cause of your emotional distress.
If you are a bystander and witness a negligent injury done to another person, you can sue for emotional damages if:
1) The victim of the negligence has a marital or close familial relationship to you
2) The Defendant’s negligence caused death or serious injury
3) You witnessed the injury or the results; and
4) You suffered severe emotional distress because of what you witnessed.
Please also take note that you must receive treatment for your emotional distress or your case might not succeed!
New Jersey Appellate Division recently decided a case involving emotional damages arising from a heated verbal dispute between a railroad foreman and a general foreman (Barella v. NJ Transit). The Court dismissed the Plaintiff’s complaint on Summary Judgment for emotional damages pursuant to the Federal Employers’ Liability Act (“FELA”) which covers railroad workers for workplace injuries. There was no dispute that FELA covered the foreman for his injuries. However, in order to claim emotional damages in a Federal Railroad Case there is an additional hurdle a Plaintiff must get over in order to be compensated. This is called the “zone of danger.” As the Court explained, the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of defendant’s negligent conduct, or who are placed in immediate risk of harm by that conduct for claims arising from FELA. Because the Plaintiff in this case failed to demonstrate a fear of imminent physical harm when his supervisor threatened his family and threw objects at him while separated by a fence, the case was dismissed.
FELA is federal law, however. New Jersey law is different in regards to emotional damages. In New Jersey, there is no “zone of danger” requirement.
To summarize, New Jersey law does not require a fear of imminent physical harm in order to claim emotional damages. This is true even for a bystander who witnesses a horrific accident. As long as the four elements are met, emotional damages will be awarded for emotional distress.
 See Decker v. Princeton Packet, Inc., 116 N.J. 418, 429, 561 A.2d 1122, 1127, 16 Media L. Rep. (BNA) 2194, 85 A.L.R.4th 797 (1989).
 See Gendek v. Poblete, 139 N.J. 291, 300, 654 A.2d 970, 974 (1995).