Bystander Recovery for Emotional Distress from Defective Products

It can be very difficult to recover damages for injuries which result in emotional distress. Unlike physical injuries, such as broken bones, it can be difficult to prove emotional injuries.

Emotional distress is also known as mental anguish. It is an injury which is mainly psychological and can, in certain cases, be asserted in a civil lawsuit.

The law recognizes emotional distress injuries as mental suffering which occurs due to an experience that was caused by the negligence or intentional act of another individual, typically of a physical nature.

An individual who personally experienced emotional trauma, along with their relatives or other bystanders may be able to file a civil lawsuit which alleges emotional distress. Emotional distress can be exhibited by feelings such as:

• Humiliation;
• Shame;
• Insomnia;
• Depression;
• Self-destructive thoughts;
• Anxiety;
• Stress; or
• Other emotional responses that resulted from the traumatic event.

It is important to note that, in many cases, an individual will only be able to sue for emotional damages if the incident resulted in physical harm. Currently, however, some courts recognize an individual’s right to monetary damages for emotional distress claims that do not include a showing of actual, physical harm, such as in cases of sexual harassment or defamation.

In these types of cases, an individual will likely be required to present expert witness testimony, such as from a therapist or psychiatrist, which may be used to prove their case for emotional distress. This expert can also evaluate the range of monetary damages which are associated with the injury.

In some cases, a therapist, doctor, or psychologist may be required to diagnose the individual with:

• Depression;
• Post traumatic stress disorder (PTSD); or
• Another mental health condition.

The expert witness may be necessary to show the court that the individual suffered actual injuries and the amount of damages which resulted from the injury. Due to the necessity of expert witnesses, emotional distress cases may be costly to prove.

In cases where an individual has a valid claim for severe emotional distress, personal injury attorneys may take the case on a contingency fee basis, which means that the attorney will not get paid unless they win the case. This fee schedule will save the individual from having to pay the high costs up front.

In addition to the previously discussed evidence, an individual must also be able to prove other elements of emotional distress. This means that the individual must also show that the incident which caused the emotional distress was caused by the intentional or reckless acts of an individual who acted with extreme or outrageous conduct, which resulted in the individual suffering from severe emotional distress.

Outrageous conduct is conduct which is more than mere:

• Insults;
• Threats;
• Annoyances; or
• Petty oppressions.

For example, if an individual shouts at another individual they hope they die would not result in a valid claim of emotional distress. However, if an individual falsely informs another individual that their child or close family member had been killed may be a valid basis for an emotional distress claim.

What is a Defective Product?

A defective product is a product which is unreasonably dangerous when it is used for its intended purpose and did not have any alteration or interference. In other words, a defective product is a product which causes injury to an individual due to one of the following types of defects:

• Design defects;
• Manufacturing defects; or
• Marketing defects.

A design defect is a defect which was present even before the product was manufactured. A company may be held liable for this type of defect if a foreseeable risk was present during manufacturing and the unsafe product was still created.

A manufacturing defect occurs during the assembly, or manufacturing, process. This may be the result of an unintentional mistake which may cause the product to be more dangerous than what the consumer or manufacturer expected.

A marketing defect results from a lack of sufficient instructions or warnings, such as improper labeling, regarding the use of the product. This type of defect is often associated with a failure to warn consumers regarding the proper way to utilize the product or failure to disclose a hazard associated with use of the product.

Some common types of defective products include:

• Food items;
• Medical devices; and
• Children’s toys.

Can a Bystander Recover for Emotional Distress Caused by a Defective Product?

In many states, emotional distress involves suffering:

• Fright;
• Anguish;
• Horror;
• Shock;
• Grief;
• Anxiety;
• Shame; or
• Humiliation.

In cases where individuals have suffered physical harm after being victimized by another individual’s negligence, they may be able to recover compensatory damages. For a bystander, experiencing the above listed emotional states after witnessing a traumatic event which involves a defective product, compensation is not as cut and dry.

The laws regarding damages for emotional distress vary by state. Some include bystanders and others exclude individuals who witnessed the traumatic situation.

For example, consider a new light bulb design which causes shards of glass to spray the vicinity of the bulb after it is turned on. If a bystander witnesses their friend’s face be peppered with glass shards, they may or may not be entitled to compensation for emotional distress, depending on the state they are in.

When is There No Recovery for Emotional Distress?

In a state which only compensates a victim who has been directly, physically injured by a defective product, a bystander who was not physically harmed is excluded from receiving a damages award. It may, however, be possible for that bystander to recover if their emotional injuries cause them to experience physical symptoms.

A personal injury attorney can provide advice regarding the laws in an individual’s state, as well as what, if any, compensation they are entitled to receive. For more information on related topics, see the following LegalMatch articles:

• Negligent Infliction of Emotional Distress to Bystanders in Car Accidents;
• What is Loss of Consortium?; and
• Cause in Fact and Proximate Cause in a Personal Injury Lawsuit.

When is there Recovery if the Bystander was the Ultimate User or Consumer of the Defective Product?

In some states, a bystander may be compensated if they are the ultimate user or consumer of the defective product. In general, the ultimate user or consumer of a defective product is the individual who used the product for their benefit or enjoyment.

What is the Recovery Under “Reasonably Foreseeable Factor” Test?

In some states, a bystander has been compensated for emotional distress when their injuries were reasonably foreseeable. The elements which a court considers when determining whether or not an event was reasonably foreseeable may include:

• If the bystander was in a location which was near the scene of the accident;
• If the shock that the bystander experienced was the direct result of a sensory and contemporaneous observance of the accident; and
• Whether the primary victim and the bystander were closely related.

The factors considered for a negligent infliction of emotional distress claim are closely related. As previously noted, laws governing these issues vary widely by state.

Should I Seek Legal Advice?

It is essential to have the assistance of a personal injury lawyer for any emotional distress caused by defective products. If you were a bystander when a defective product was used or you have been injured, either physically or emotionally, you may be entitled to receive compensation. Your lawyer can advise you of the laws in your area, your rights, and represent you when you are required to appear in court.