2. are present at the scene of the injury-producing event at the time
that it occurs and are aware at the time that it is causing injury to the
victim; and
3. as a result, suffer serious emotional distress — a reaction beyond
that which would be anticipated in a disinterested witness, and which
is not an abnormal response to the circumstances
Because the first factor is a duty question, the judge should answer it. The
second and third factors are, however, proximate cause limitations that are
to be weighed by the finder of fact.
Although the
La Chusa
framework for NIED cases is an immense step
forward from the impact rule, it does not provide the final answer as to
how Florida NIED jurisprudence should develop. Indeed, both
La Chusa
dealt with bystanders (i.e. secondary victims) who suffered emo-
tional harm as a result of witnessing another being negligently injured, and
so the California courts have not had reason to think through the implica-
tions of the distinction between primary and secondary victims. We need
to turn, therefore, to a jurisdiction that has done precisely that.
The first thing to note about the English approach, however, is that com-
pensation is payable for emotional distress, unaccompaned by physical in-
jury, only if the plaintiff can establish that he or she suffered a “recognised
psychiatric illness.” Grief, fright, or any other form of distress that does not
constitute a medical illness is not compensable
Page v. Smith
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