I SAW HER STANDING THERE
245
Primary Victims
Proper recognition of whether a claimant is a primary or secondary victim
is fundamental in NIED analysis because they have different requirements
for determining who was owed a duty of care by the defendant. Primary
victims, like all other victims of negligence, must have been owed a duty of
care by the defendant in order to be able to receive compensation for any
injuries they suffered as a result. If a defendant knows that his or her negli-
gent conduct may harm a specified class, he or she is then in a position to
take appropriate precautions, and/or to plan for liability through insurance
coverage and other risk spreading mechanisms
.
78
Tort law is also designed
to compensate victims for real and actual injuries that were caused by an-
other’s negligence; and a nebulous impact, however slight or severe, does
not make the plaintiff’s emotional injuries any more real. Unfortunately, the
current impact rule in Florida makes compensation for the plaintiff’s purely
emotional injuries contingent upon such a chance physical impact — and
this, in turn, fails to provide the defendant with any predictability regarding
exposure to liability.
A more traditional negligence analysis solves this problem. The court
would determine, first, whether the defendant owed the plaintiff a duty of
care, according to the traditional notion of foreseeability. Specifically, a pri-
mary victim would be owed a duty if he or she was in the zone of danger
.
79
If such a duty were found to exist, the trier of fact — typically, a jury —
would then be charged with determining (together with other issues, such
as whether the duty was breached and, if so, whether that breach was a
78 John L. Diamond,
Dillon v. Legg Revisited: Toward a Unified Theory of Compensating
Bystanders and Relatives for Intangible Injuries
,
.
79
Palsgraf v. Long Island R. R. Co.
,
.
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