698 December 22, 2016 No. 79

IN THE SUPREME COURT OF THE

STATE OF OREGON

Stacie PHILIBERT,

in her capacity as guardian ad litem for

Cameron Hollenbeck-Hatch and

Domanick Hollenbeck-Hatch,

Petitioners on Review,

v.

Dennis Dixon KLUSER,

Respondent on Review.

(CC 13CV01410, CA A156192, SC S063738)

On review from the Court of Appeals.*

Argued and submitted September 19, 2016.

Kathryn H. Clarke, Portland, argued the cause and filed 

the brief for the petitioners on review. Also on the briefs was 

Tim Williams, Bend.

Flavio A. Ortiz, Lachenmeier Enloe Rall & Ortiz, 

Portland, argued the cause and filed the brief for the respondent on review. Also on the briefs was Martin M. Rall.

Cody Hoesly, Larkins Vacura LLP, Portland, filed the 

brief for amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices, and Rebecca 

A. Duncan, Judge of the Court of Appeals, Justice pro 

tempore.**

BALMER, C. J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings.

______________

** Appeal from Jefferson County Circuit Court, Gary Lee Williams, Judge. 

274 Or App 195, 361 P3d 610 (2015)

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
Cite as 360 Or 698 (2016) 699

Case Summary: Plaintiffs watched a negligent driver hit and kill their 

brother and sought to recover for their emotional distress in a negligence action. 

The trial court followed the “impact rule” of Saechao v. Matsakoun, 78 Or App 

340, 717 P2d 165, rev dismissed, 302 Or 155 (1986), and dismissed the case and 

the Court of Appeals affirmed. Held: (1) Plaintiffs have a legally protected interest in not witnessing the negligent death of their brother and (2) plaintiffs therefore stated a claim upon which relief could be granted.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further 

proceedings.
700 Philibert v. Kluser

BALMER, C. J.

This case requires us to consider the circumstances,

if any, under which damages may be recovered by a bystander 

who suffers serious emotional distress as a result of observing the negligent physical injury of another person. Plaintiffs 

witnessed the death of a family member who was run over 

by a truck, but were not themselves physically injured.1

 They 

sought recovery for their emotional distress. The trial court 

dismissed the action and the Court of Appeals affirmed, 

both relying on the “impact rule.” Philibert v. Kluser, 274 

Or App 195, 361 P3d 610 (2015). The impact rule allows a 

plaintiff to seek damages for negligently caused emotional 

distress only if the plaintiff can show some physical impact 

to himself or herself, thus precluding the claims brought by 

plaintiffs in this case. For the reasons that follow, we conclude that plaintiffs should be able to pursue their claims 

notwithstanding the fact that they did not themselves suffer physical injury. We therefore reverse the decision of the 

Court of Appeals and the judgment of the circuit court, and 

remand the case to the trial court.

I. FACTS AND PROCEEDINGS BELOW

Because plaintiffs appeal a judgment dismissing 

their complaint for failure to state a claim, ORCP 21 A(8), we 

take as true the facts alleged in the complaint. Plaintiffs are 

two brothers, aged eight and 12, who were crossing a street 

in a crosswalk with the walk signal with their seven-yearold younger brother. Defendant negligently drove his pickup 

truck through the crosswalk, running over the youngest boy 

and narrowly missing the other two. The brother who was 

struck died at the scene. The two surviving brothers witnessed their brother’s death and experienced serious emotional injuries as a result.

Plaintiffs filed this action against the driver, alleging negligence and seeking compensation for their emotional 

injuries. Their injuries include severe emotional distress, 

depression, post-traumatic stress disorder, aggression, and 

severe anxiety. Defendant moved to dismiss their complaint 

1 For the purposes of this opinion, “plaintiffs” refers to the two minors who 

are represented in this litigation by their guardian ad litem.
Cite as 360 Or 698 (2016) 701

for failure to state a claim upon which relief could be granted, 

arguing that, as bystanders who had not been physically 

injured by defendant, they could not recover for their emotional distress. The trial court granted that motion, applying 

the “impact rule” announced in Saechao v. Matsakoun, 78 

Or App 340, 717 P2d 165, rev dismissed, 302 Or 155 (1986), 

and plaintiffs appealed. The Court of Appeals affirmed the 

trial court’s dismissal, also citing Saechao. Philibert, 274 Or 

App 195.

In Saechao, the Court of Appeals confronted a situation factually similar to the present case. A driver negligently drove a car onto a sidewalk, killing one child, striking a sibling, and leaving two additional siblings untouched. 

Saechao, 78 Or App at 342-43. The three surviving children 

sued to recover for the emotional distress caused by witnessing their brother’s death. Id. at 343. The court recognized the case as presenting a question of first impression of 

“when a person who witnesses the negligently caused injury 

or death of a member of the immediate family may recover 

damages for serious emotional distress resulting from witnessing the accident.” Id. at 342. A divided, en banc court 

adopted the impact rule, “requiring that there be a direct 

accompanying [physical] injury to the person who suffers 

the emotional distress as a prerequisite to its compensability.” Id. at 346. As a result, the child who was physically 

injured was permitted to seek emotional distress damages 

caused by witnessing his brother’s death, but the claims by 

the two siblings who were not physically injured were dismissed. Judge Warren, writing for four judges, dissented. 

Id. at 348. The two children who were not injured, and thus 

had no claim, petitioned this court for review. We allowed 

review, but the case was settled and the petition for review 

dismissed. Saechao, 302 Or at 156. The Court of Appeals 

has continued to follow the impact rule in subsequent cases, 

as it did here. See, e.g., Sherwood v. ODOT, 170 Or App 66, 

77-78, 11 P3d 664, rev den, 331 Or 692 (2000). We directly 

address the bystander recovery issue here for the first time.

II. ANALYSIS

Plaintiffs urge us to abandon the impact rule and 

adopt in its place a rule that allows them to recover damages 
702 Philibert v. Kluser

for their emotional distress without showing any physical 

harm to themselves. They suggest a “zone of danger” rule 

or a foreseeability-based rule. Although we agree that the 

impact test should not control bystander recovery, we do 

not adopt either of their suggested alternatives. Instead, 

for the reasons discussed below, we conclude that the rule 

articulated in the Restatement (Third) of Torts section 48 

(2012) best promotes principled outcomes while avoiding 

the prospect of imposing potentially unlimited liability on 

defendants for the emotional distress that their negligence 

may cause. We begin our discussion by reviewing our existing case law regarding recovery of damages for negligent 

infliction of emotional distress and the role that foreseeability has in those claims. We then consider whether a claim for 

recovery of those damages in the circumstances presented 

here—where the plaintiff witnesses the negligently caused 

traumatic injury or death of a close family member—is 

consistent with our case law and should be recognized as 

a common law tort claim. Answering that question in the 

affirmative, we evaluate several tests for recovery in such 

circumstances that have been used by other courts, rejecting 

the impact rule adopted by the Court of Appeals in Saechao 

and plaintiffs’ proposed zone of danger rule and adopting 

instead the test set out in section 48 of the Restatement.

Finally, we apply the Restatement test to the facts of this 

case.

A. The Norwest Framework

In Norwest v. Presbyterian Intercommunity Hosp., 

293 Or 543, 558-61, 652 P2d 318 (1982), we mapped the 

landscape of cases addressing claims for emotional distress 

damages and explained the framework that guides recovery for those injuries. Oregon allows plaintiffs to recover 

damages for emotional distress when they are physically 

injured, see id. at 558, and when the defendant acted intentionally, id. at 559 (citing Hall v. The May Dept. Stores, 292 

Or 131, 637 P2d 126 (1981)). At issue here is a third basis 

recognized in Norwest for recovery of damages for emotional distress: when a defendant negligently causes foreseeable, serious emotional distress and also infringes some 

other legally protected interest. Norwest, 293 Or at 559. The 

plaintiff’s claim in that circumstance partially resembles 
Cite as 360 Or 698 (2016) 703

a common-law negligence claim in that it rests on the concept of foreseeability. Norwest made clear, however, that the

injury’s foreseeability, standing alone, is insufficient to 

establish the defendant’s liability: there must also be another 

“legal source” of liability for the plaintiff to recover emotional 

distress damages. Norwest, 293 Or at 569 (explaining that 

liability for emotional distress must have “a legal source 

besides its foreseeability”). Those two concepts identified in 

Norwest—foreseeability and the source of a legally protected 

interest—guide our analysis in this case.

Perhaps the simplest legally protected interest is 

that to be “free from physical harm at the hands of another.”2

Gaston v. Parsons, 318 Or 247, 255 n 8, 864 P2d 1319 (1994). 

In the context of that general interest to be free from physical harm, a defendant is liable to a plaintiff for damages 

resulting from the defendant’s conduct that “unreasonably 

created a foreseeable risk * * * of the kind of harm that 

befell the plaintiff.” Fazzolari v. Portland School Dist. No. 

1J, 303 Or 1, 17, 734 P2d 1326 (1987); see also Piazza v. 

Kellim, 360 Or 58, 69-72, 377 P3d 492 (2016) (discussing 

elements of negligence claim). In addition to foreseeability’s 

role in determining community standards for “blameworthiness” and liability, Fazzolari, 303 Or at 12, foreseeability is 

a pragmatic limit on liability for negligently caused physical harm because of the relative scarcity of physical injury, 

compared with emotional harm. See id. at 13 (identifying 

foreseeability as “a limit on the scope of liability”).

In contrast to physical harms, emotional harms 

occur frequently. Fowler V. Harper, Fleming James, Jr. & 

Oscar S. Gray, 3 Harper, James and Gray on Torts § 18.4, 

812 (3d ed 2007) (“The zone of psychic danger is more extensive than the zone of the foreseeable hazard of physical 

impact.”). Any number of people may suffer emotional distress as the foreseeable result of a single negligent act. The 

Restatement provides an example: “a negligent airline that 

causes the death of a beloved celebrity can foresee genuine 

emotional harm to the celebrity’s fans, but no court would 

2 Labeling freedom from physical harm as a legally protected interest for 

purposes of recovering emotional distress damages under the third category outlined in Norwest is simply a different way of stating the general rule that emotional distress damages are available to a plaintiff who is physically injured.
704 Philibert v. Kluser

permit recovery for emotional harm under these circumstances.” Restatement § 48 comment g. For that reason, foreseeability, standing alone, is not a useful limit on the scope 

of liability for emotional injuries. In Harris v. Suniga, 344 

Or 301, 180 P3d 12 (2008), this court explained that allowing recovery for economic loss on the basis of foreseeability, 

without requiring more, would invite, in the words of Judge 

Cardozo, “liability in an indeterminate amount for an indeterminate time to an indeterminate class.” Id. at 308 (quoting Ultramares Corporation v. Touche, 255 NY 170, 179, 174 

NE 441, 444 (1931) (emphasis omitted)); see also Ore-Ida 

Foods v. Indian Head, 290 Or 909, 917, 627 P2d 469 (1981) 

(discussing “practically limitless” claims for consequential 

economic injury). Emotional distress, like economic loss, ripples throughout society as a foreseeable result of negligent 

conduct. Without some limiting principle in addition to foreseeability, permitting recovery for emotional injuries would 

create indeterminate and potentially unlimited liability.

As a result, if we were to recognize a legally protected interest against all negligently caused emotional 

harms, then foreseeability would no longer serve as an effective limit on liability. Nevertheless, even where a plaintiff 

has not been physically harmed, recovery for foreseeable 

emotional damages is available when the defendant’s conduct “infringed some legally protected interest apart from 

causing the claimed distress[.]”3 Norwest, 293 Or at 559. In 

the context of emotional distress, a legally protected interest is “‘an independent basis of liability separate from the 

general duty to avoid foreseeable risk of harm.’” Lockett v. 

Hill, 182 Or App 377, 380, 51 P3d 5 (2002) (quoting Phillips 

3 Another way to compare negligence claims for physical and emotional injury 

is to contrast the extent of legal protection from physical harm with the extent of 

legal protection from emotional harm. A person’s physical well-being is broadly 

protected: almost any kind of physical injury or even touching can be actionable. 

In contrast, a person’s emotional well-being is not subject to general protection 

under the law. Courts and legislatures, however, have identified certain circumstances in which emotional well-being is legally protected. Examples include 

emotional harm resulting from invasion of privacy, Hinish v. Meyer & Frank Co., 

166 Or 482, 113 P2d 438 (1941), or disinterment of the body of a spouse, Hovis v. 

City of Burns, 243 Or 607, 415 P2d 29 (1966). As discussed, a plaintiff seeking to 

recover for negligent infliction of emotional distress must identify the invasion of 

an interest that is or should be legally protected, and must also allege the facts 

otherwise necessary to support a negligence claim. See Norwest, 293 Or at 569.
Cite as 360 Or 698 (2016) 705

v. Lincoln County School District, 161 Or App 429, 433, 984 

P2d 947 (1999)). The right to recovery for such injuries does 

not “arise from infringement of every kind of legally protected interest, but from only those that are ‘of sufficient 

importance as a matter of public policy to merit protection 

from emotional impact.’” Id. (quoting Hilt v. Bernstein, 75 

Or App 502, 515, 707 P2d 88 (1985), rev den, 300 Or 545 

(1986)). For example, the invasion of a person’s privacy will 

not always support a claim for emotional injury, because the 

nature and context of the invasion influences the extent to 

which privacy is legally protected and can be the basis for 

a successful emotional distress claim. Compare Anderson v. 

Fisher Broadcasting Co., 300 Or 452, 712 P2d 803 (1986) 

(denying claim for emotional distress resulting from television station’s use of image of plaintiff as stock footage in 

unrelated news story) with Hinish v. Meyer & Frank Co., 166 

Or 482, 506, 113 P2d 438 (1941) (allowing claim for emotional distress when plaintiff’s name was signed without his 

consent on a telegram to the governor).

Among other circumstances, this court recognizes a 

plaintiff’s legally protected interest when another party has 

a legal duty “designed to protect plaintiff[] against the type 

of harm which *** occurred.” Nearing v. Weaver, 295 Or 702, 

708, 670 P2d 137 (1983). For example, in McEvoy v. Helikson, 

277 Or 781, 562 P2d 540 (1977), the court upheld a father’s 

claim for emotional damages against a lawyer who delivered 

a passport to the mother that resulted in the mother leaving 

the country with the couple’s child. The lawyer had violated 

a court order to keep the passport until the father had custody of the child. Id. at 784. The reviewing court concluded 

that when the judge issued that order, it was “foreseeable 

that [the mother] might * ** take [the child] with her back 

to Switzerland” and that “the primary purpose” of the order 

was to “protect plaintiff against the happening of that very 

danger.” Id. at 788.

Similarly, in Nearing, the plaintiff stated a claim 

for recovery of emotional distress damages when she alleged 

that police officers violated a statutory duty to arrest her 

ex-spouse, who later threatened her. 295 Or at 707. The 

legally protected interest in that case was created by a 

statute designed to protect victims of domestic abuse. Id.
706 Philibert v. Kluser

at 709 (“The widespread refusal or failure of police officers 

to remove persons involved in episodes of domestic violence was *** the main reason *** to require enforcement 

of restraining orders by mandatory arrest * **.”). In other 

words, “the risk, the harm, and the potential plaintiff were 

all foreseen by the lawmaker.” Id. at 708-09. In both McEvoy

and Nearing, the plaintiff’s successful claim for emotional 

distress damages rested on the defendant’s violation of a 

legally protected interest, which in turn originated from a 

legal duty designed to protect the plaintiff from the type of 

emotional harm that occurred.

In addition to court order and statute, common law 

also can be the source of a legally protected interest capable 

of supporting a claim for recovery of emotional distress. See, 

e.g., Macca v. General Telephone Co. of N.W., 262 Or 414, 

418, 495 P2d 1193 (1972) (allowing claim for emotional damages on the basis of infringement of right to be free from 

private nuisance); Hovis v. City of Burns, 243 Or 607, 613, 

415 P2d 29 (1966) (allowing claim for emotional damages 

on the basis of infringement of right of a surviving spouse 

to have the remains of a deceased spouse undisturbed); cf. 

MT & M Gaming, Inc. v. City of Portland, 360 Or 544, 562, 

383 P3d 800 (2016) (noting, in a different context, that “[a]s 

a general proposition, legal recognition can come from many 

sources—statutes, constitutional provisions, regulations, 

local ordinances, and the historical and evolving common 

law”).

In contrast, this court has denied recovery to plaintiffs for emotional injuries resulting from a defendant’s negligence when there is no independent legal source of liability. 

See, e.g., Norwest, 293 Or at 568-69 (denying child’s claim for 

“loss of his mother’s society and companionship” because the 

defendant’s liability “had no legal source besides its foreseeability”); Hammond v. Central Lane Communications Center, 

312 Or 17, 24, 819 P2d 593 (1991) (denying recovery to wife 

who claimed emotional injury caused by watching husband 

die from heart attack while 9-1-1 system negligently delayed 

response because she had not “point[ed] to some legally 

protected interest of hers that defendants violated” (internal quotation omitted)); Anderson, 300 Or at 469 (denying 

recovery to plaintiff whose image was used in television 
Cite as 360 Or 698 (2016) 707

news story because he had not shown that “the manner 

or purpose of defendant’s conduct [was] wrongful in some 

respect apart from causing the plaintiff’s hurt feelings”).

We now turn to the bystander’s claim for negligently inflicted emotional distress. Plaintiffs assert the violation of two legally protected interests that they contend 

are sufficient to support their negligence claims: the right 

to avoid emotional injury caused by violations of traffic laws 

and the common law right of a bystander to avoid observing 

the physical injury of a close family member.4

 This court has 

not had occasion to previously consider such a “bystander 

claim.” Norwest, 293 Or at 559 n 18 (“We have not had occasion to examine the bystander’s claim for psychic injury 

from witnessing a negligent physical injury to a close relative ***.”). Our prior cases, however, have allowed claims for 

negligently inflicted emotional distress to proceed when the 

court has determined that an asserted common law interest 

is sufficiently important to support the imposition of liability. The negligent handling of a spouse’s remains in Hovis 

and the particular invasion of privacy at issue in Hinish—

an unauthorized telegram to the Governor falsely stating 

the plaintiff’s support for particular legislation—are examples. In our view, the interest in avoiding being a witness to 

the negligently caused traumatic injury or death of a close 

family member is similarly important. Witnessing sudden 

physical injury or death is a palpable and distinct harm, different in kind even from the emotional distress that comes 

with the inevitable loss of our loved ones. Plaintiffs here 

watched as their younger brother was crushed by a pickup 

truck—a violation of their interest in not witnessing such a 

shocking and tragic event. And the resulting impact on them 

might be described as the emotional equivalent of a physical 

injury. As Prosser and Keeton observe, following Dillon v. 

Legg, 68 Cal 2d 728, 441 P2d 912 (1968) and similar cases, 

it is “obvious” and favored by “[a]ll ordinary human feelings” that the damages for emotional distress of a mother 

4 Because we conclude that plaintiffs have alleged a legally protected common law interest that is sufficient under Norwest to support their claim for emotional distress in these circumstances, we do not address their alternative argument that Oregon’s traffic laws establish a “legally protected interest” on the part 

of persons who suffer emotional injury when another person violates those laws.
708 Philibert v. Kluser

seeing her child injured should be recoverable in negligence. 

W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David 

G. Owen, Prosser and Keeton on the Law of Torts § 54, 366 

(5th ed 1984). We have no difficulty concluding that plaintiffs have alleged the violation of a legally protected common 

law interest to be free from the kind of emotional distress 

injury caused by defendant’s negligence here.

Our remaining task is to frame the contours of 

that interest and identify the elements that will allow a 

bystander to recover for the negligent infliction of emotional 

distress, while also providing a limiting principle that will 

avoid potentially unlimited claims or damages.5

 To do so, 

we consider three tests that courts commonly have used in 

similar cases: the impact test, the zone of danger test, and 

the Restatement approach.

B. The Impact Test

The impact rule allows a plaintiff to recover for emotional distress when he or she also has suffered a physical 

injury. The Court of Appeals in Saechao applied that general rule to bystander cases, ruling that a bystander could 

not recover for emotional distress unless there is “direct 

accompanying [physical] injury to the person who suffers 

the emotional distress.” 78 Or App at 346. Proponents of the 

impact rule claim that its merit lies in the bright line test 

for liability that it creates, id. at 348 (describing the impact 

test as providing a clear line and creating a “clear relationship between compensability and the plaintiff’s being a victim of a breach of duty”); the clean question of proof that 

it presents, Keeton et al, Prosser and Keeton on the Law of

Torts § 54, 364 (describing the impact test’s “true value” as 

“the opportunity which is afforded to the defendant to testify 

that there was in fact no impact”); and as a “guarantee that 

the mental disturbance is genuine,” Wilson v. Tobiassen, 97 

Or App 527, 532, 777 P2d 1379, rev den, 308 Or 500 (1989) 

(internal quotation omitted).

5 The Restatement notes that courts in states that allow recovery on the basis 

of foreseeability alone have had to resort to the “artificial manipulation of foreseeability” to avoid potentially “excessive and unworkable liability” for emotional 

distress claims. Restatement § 48 Reporters Note comment g (citing Colbert v. 

Moomba Sports, Inc., 163 Wash 2d 43, 176 P3d 497 (2008) (illustrating strained 

application of foreseeability)).
Cite as 360 Or 698 (2016) 709

The impact rule is problematic, however, because it 

sets a bar to recovery in bystander cases that can be both too 

high and too low. The bar is often too high because there is 

no principled reason to deny recovery for negligently caused 

emotional injury simply because the physical contact was 

with a third person rather than the plaintiff. See Saechao, 

78 Or App at 349-50 (Warren, J., dissenting) (“Under the 

impact rule there is no causal, logical, or necessary relationship between the impact and the injury for which recovery is sought.”). The facts of this case illustrate that point. 

Plaintiffs witnessed the traumatic death of their brother, 

but under the impact rule were denied recovery because the 

truck did not touch them. Yet, their distress at witnessing 

the death of their brother is likely unrelated to the coincidental fact that the truck did not hit them also. To deny 

recovery because a third person, rather than the plaintiffs, 

was physically injured—when even a minor physical impact 

is sufficient under that test—seems arbitrary and fails to 

protect plaintiffs’ interest in avoiding witnessing the negligently caused death of their brother.

At the same time, the impact rule sets the bar too 

low in other circumstances, because a minor injury unrelated to the emotional distress satisfies the impact requirement and permits the claim to proceed. See id. at 343 (holding impact test satisfied by bruising). A review of the impact 

rule as applied across jurisdictions reveals that the required 

physical impact

“often play[s] no part in causing the real harm, and in 

[itself has] no importance whatever. ‘Impact’ has meant a 

slight blow, a trifling burn or electric shock, a trivial jolt 

or jar, a forcible seating on the floor, dust in the eye, or the 

inhalation of smoke. The requirement has even been satisfied by a fall brought about by a faint after a collision, or 

the plaintiff’s own wrenching of her shoulder in reaction to 

the fright. ‘The magic formula ‘impact’ is pronounced; the 

door opens to full recovery.’”

Keeton et al, Prosser and Keeton on the Law of Torts § 54, 

363-64 (internal citations omitted). In Oregon as well, the 

application of the impact rule has led to subtle distinctions. 

Compare Simons v. Beard, 188 Or App 370, 376-78, 379, 72 

P3d 96 (2003) (allowing plaintiff to proceed with claim for 
710 Philibert v. Kluser

emotional distress arising from concern about her unborn 

child because the impact test was satisfied by her abnormal 

delivery) with Chouinard v. Health Ventures, 179 Or App 507, 

514, 39 P3d 951 (2002) (denying plaintiff recovery for emotional distress because the presence of a tumor in her brain, 

without evidence that it grew during the relevant period, 

was insufficient “physical impact to permit plaintiff’s claims 

** * to go to the jury”).

The impact rule bars plaintiffs who have suffered 

genuine serious emotional distress from recovering and 

fails to treat like cases alike. In our view, those criticisms 

are persuasive. Moreover, at least some of the purposes the 

impact rule is supposed to serve—such as screening out 

fraudulent claims and assisting parties, juries, and courts 

by providing a bright-line rule—are fulfilled by various 

aspects of the Restatement rule, as discussed below. Other 

jurisdictions agree: the Restatement identifies Oregon as 

one of only four states that continue to apply the impact 

rule. Restatement § 48 Reporters Note comment a. Indeed, 

the impact test has been disfavored for decades. See Richard 

N. Pearson, Liability to Bystanders for Negligently Inflicted 

Emotional Harm—A Comment on the Nature of Arbitrary 

Rules, 34 U Fla L Rev 477, 488 n 68 (1982) (identifying four 

states following the impact rule in 1982). We therefore reject 

the impact rule as the test for a bystander’s recovery of emotional distress resulting from injury to another.

C. The Zone of Danger Test

Plaintiffs suggest that we permit their recovery 

under the zone of danger test, which is used by some courts 

to allow recovery to a plaintiff who experiences “serious 

emotional distress due to witnessing a fatal injury to a third 

person only if the plaintiff was personally within the zone of 

danger of physical impact from the defendant’s negligence.” 

Saechao, 78 Or App at 346. Although the zone of danger 

test found some favor, see, e.g., Amaya v. Home Ice, Fuel & 

Supply Co., 59 Cal 2d 295, 379 P2d 513 (1963) (adopting 

test), California notably abandoned the zone of danger test 

in Dillon, 68 Cal 2d at 728. In that case, a child’s sister, 

standing close by, and her mother, standing down the block, 

observed a negligent driver kill the child. Id. at 731. The 
Cite as 360 Or 698 (2016) 711

court rejected the zone of danger rule and allowed both witnesses to proceed with their claims for emotional distress. 

Id. at 747-48. That court explained that rejecting the zone 

of danger test logically follows rejecting the impact test 

“because the only reason for the requirement of presence in 

that zone lies in the fact that one within it will fear the danger of impact.” Id. at 733 (emphasis in original). Neither test 

actually relates to the likelihood or severity of the emotional 

distress that can result from seeing a close family member 

suffer serious injury.

In practice, the zone of danger test results in 

unfairly denying recovery to plaintiffs who are located outside the zone of physical danger, but witness the physical 

injury to the third person just the same as if they had been 

in that zone, as the facts of Dillon demonstrate. See Saechao, 

78 Or App at 348 (“[T]he zone of danger rule *** would not 

provide rational differentiations between those who may 

and those who may not recover.”). We are persuaded by the 

reasoning of the California Supreme Court in Dillon and 

decline to adopt the zone of danger test.

D. The Restatement Rule

A number of authorities have attempted to articulate a test for bystander recovery that avoids the somewhat 

arbitrary aspects of the impact and zone of danger tests, 

while limiting the potential for indeterminate and excessive liability for emotional distress claims that we discussed 

above. Probably the most thoughtful recent formulation is 

found in the Restatement section 48, which builds on Dillon 

and similar cases. Under that approach, a defendant “who 

negligently causes sudden serious bodily injury to a third 

person is subject to liability for serious emotional harm 

caused thereby to a person who (a) perceives the event contemporaneously, and (b) is a close family member of the person suffering the bodily injury.” Restatement § 48 (“Negligent 

Infliction of Emotional Harm Resulting from Bodily Harm 

to a Third Person”). In our view, that test hews closely to 

the interest that should be legally protected—that is, the 

circumstances in which recovery for negligently caused emotional distress is favored by “[a]ll ordinary human feelings,” 

Keeton et al, Prosser and Keeton on the Law of Torts § 54, 
712 Philibert v. Kluser

366—while also recognizing necessary limits on potential 

liability and providing at least some guidance to courts and 

juries. Moreover, the Restatement test is generally consistent with this court’s cases dealing with other aspects of 

claims for negligently caused serious emotional distress. We 

turn to a closer examination of the rule articulated in the

Restatement.

The bystander recovery rule reflects a common 

understanding that the injury of another person creates a 

risk, that is reasonably likely to be realized, of causing a 

reasonable bystander to suffer serious emotional distress 

when certain factors are present. Thing v. La Chusa, 48 Cal 

3d 644, 666, 771 P2d 814, 828 (1989) (“[I]n common experience, it is more likely that [persons closely related by blood or 

marriage] will suffer a greater degree of emotional distress 

than a disinterested witness to negligently caused pain and 

suffering or death.”). In other words, the ability “to discriminate between stimuli that would induce serious psychic 

consequences in normally constituted people and those that 

would do so only in people already peculiarly vulnerable * * * 

turn[s] on the severity of the stimulus.” Harper et al, Harper, 

James & Gray on Torts § 18.4, 812 (emphasis in original). 

The elements of the bystander recovery rule reflect the conditions that are likely to present a risk of serious emotional 

distress that is reasonably likely to be realized.6

The first element is that the bystander must witness a sudden, serious physical injury to a third person negligently caused by the defendant. Restatement § 48. Hammond 

presented a situation in which that element was not present. There, the plaintiff awoke to find her husband lying on 

the floor, apparently the victim of heart attack. 312 Or at 

20. The plaintiff sought to recover for her severe emotional 

distress, alleging that if the defendant 9-1-1 service had 

arrived in the “couple of minutes” that the 9-1-1 operator 

predicted, rather than after the 45 minutes that actually 

6 Compare this approach with the impact rule, which looks only to whether 

the bystander suffered physical impact and not to the magnitude or significance 

of any injury. The zone of danger rule similarly falls short in identifying the 

aspects of a bystander experience that predict whether a reasonable person 

would react with serious emotional distress. See Harper et al, Harper, James & 

Gray on Torts § 18.4, 812 (so arguing).
Cite as 360 Or 698 (2016) 713

elapsed, she would not have suffered emotional distress. Id.

at 21. This court did not allow recovery. Id. at 28. Although 

the defendant may have contributed to the death by failing 

to respond quickly enough, the defendant did not cause the 

actual physical injury—the heart attack.

Second, the plaintiff must have suffered serious

emotional distress. It is a truism that emotional distress 

is an unavoidable and essential part of life. The California 

Supreme Court explained that concept in the context of 

bystander emotional injury:

“The emotional distress for which monetary damages may 

be recovered, however, ought not to be that form of acute 

emotional distress or the transient emotional reaction to 

the occasional gruesome or horrible accident to which every 

person may potentially be exposed in an industrial and 

sometimes violent society. ** * The overwhelming majority 

of ‘emotional distress’ which we endure, therefore, is not 

compensable.”

Thing, 48 Cal 3d at 666-67. For that reason, our cases allow 

compensation for only serious emotional distress. See Hall, 

292 Or at 135 (noting that compensable emotional distress 

is not the “kind of temporary annoyance or injured feelings 

that can result from friction and rudeness among people in 

day-to-day life”). A bystander who experiences emotional 

harm that does not rise to the level of serious emotional distress, therefore, cannot recover for that harm.

Third, in order to recover, the plaintiff must have 

perceived the events that caused injury to the third person 

as they occurred. Restatement § 48(a). This contemporaneous perception is at the core of the bystander’s action for 

damages. Observation of the scene of an accident after it 

has happened, or perceiving a recently injured person, does 

not meet this requirement. See id. at comment e (“It is not 

enough that the person later learned about the events, later 

viewed a recording of them, or later observed the resulting 

bodily injuries.”). This bright line rule is justified in part 

by the fact that the distressing life experience of learning 

about the death or injury of a loved one is unavoidable. Its 

inevitability means that “in a general way one is prepared” 

for it. Ochoa v. Superior Court, 39 Cal 3d 159, 165 n 6, 703 

P2d 1, 5 n 6 (1985). In comparison, the visceral experience 
714 Philibert v. Kluser

of witnessing the sudden death or injury of a loved one by 

a negligent driver, as here, is not a certain part of life and 

therefore presents a stronger basis for allowing recovery 

against the tortfeasor.

The final element of the claim is that the physically 

injured person be a close family member of the plaintiff. 

Restatement § 48(b). Witnessing the injury of a stranger or 

acquaintance, while likely distressing, is not sufficient to 

recover. As we recognized three decades ago, however, formal legal relationships only imprecisely capture the reality of emotional connections in our society. Norwest, 293 Or 

at 561 (recognizing the “difficulties” with linking recovery 

to formal relationships “in a society whose practices and 

common assumptions about * * * relationships are rapidly 

changing”); see also Leong v. Takasaki, 55 Haw 398, 410, 

520 P2d 758, 766 (1974) (“Neither should the absence of a 

blood relationship between victim and plaintiff-witness 

foreclose recovery.”). The fraternal relationship of plaintiffs 

here to the person killed meets that requirement, but other 

cases may present closer questions as to the meaning of 

“close family member.” See Restatement § 48 comment f (“[A] 

grandparent who lives in the household may have a different status from a cousin who does not.”).

We recognize that the bystander recovery rule outlined in the Restatement may give rise to the possibility of 

false or inflated claims and that aspects of the rule may 

seem arbitrary. For as long as courts have awarded damages for emotional injuries, there have been concerns about 

plaintiffs bringing false claims. See Fehely v. Senders, 170 

Or 457, 471, 135 P2d 283 (1943) (“[T]he danger that unscrupulous persons may impose on juries with fictitious claims 

** * is a practical argument to which courts rightly give 

attention[.]”). Juries are charged with discerning truth from 

self-serving fiction when plaintiffs testify about their own 

injuries and are as competent to do this in claims for emotional injuries as they are in other cases. Eisele v. Rood, 275 

Or 461, 467, 551 P2d 441 (1976) (“In cases in which plaintiff’s evidence of injury is merely subjective in nature, the 

jury may choose to disbelieve plaintiff’s testimony ***.”). 

Laws also may be structured to deter false claims by sympathetic plaintiffs whose charisma may evoke inconsistent and 
Cite as 360 Or 698 (2016) 715

unpredictable jury verdicts. See Libbee v. Permanente Clinic, 

268 Or 258, 264, 518 P2d 636, reh’g den, 268 Or 273, 520 

P2d 361 (1974) (“[I]f the common law has vitality it should 

be elastic enough to provide safeguards against fraudulent 

and speculative claims and to adapt itself to the facts of life 

in our modern society.” (Citation omitted.)). The Restatement

rule performs this function by including elements that, on 

the basis of human experience, are objective indicators of 

possibly serious emotional injury. See Thing, 48 Cal 3d at 

666 (stating that “in common experience, it is more likely” 

that greater emotional distress will result when plaintiff 

observes contemporaneous injury to a closely related person). When the elements of the test are met, a plaintiff’s 

claims of subjective emotional distress are more likely to be 

genuine.7

The Restatement rule may have the effect of permitting some claims that would be rejected under other 

tests, and vice-versa. In this area of the law in particular, 

some arbitrariness cannot be avoided. See Saechao, 78 Or 

App at 348 (Warren, J., dissenting) (“The fact that a decision is arbitrary in some respects does not mean that it cannot be principled.”); Thing, 48 Cal 3d at 666 (“[A]rbitrary 

lines * ** limit the class of potential plaintiffs if emotional 

injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.”); Restatement 

§ 48 comment e (“There is an unavoidable arbitrariness to 

the line-drawing in this area.”). But although the rule may 

be arbitrary in some circumstances, it “serve[s] a function 

and [is] neither random nor irrational.” Id. at comment g. 

The undesirable arbitrary aspect of rules must be balanced 

7 Similarly, the bystander recovery rule also works to screen out claims by 

plaintiffs who react with serious emotional distress to common upsetting events 

of life that would not provoke that response in a reasonable person. See Fehely v. 

Senders, 170 Or 457, 475, 135 P2d 283 (1943) (“We adopt as a general rule which 

should govern in cases of this sort the following ***: ‘The extent and duration 

of emotional distress produced by the tortious conduct depend upon the sensitiveness of the injured person. The court, however, will not permit consideration 

of disturbances which, conceding full weight to individuality, are wholly abnormal and unreasonable.’” (Quoting Restatement (First) of Torts § 905 comment 

i (1939).)). The factual conditions required for a plaintiff to recover provide an 

objective basis to believe that the serious emotional distress that the plaintiff 

alleges is genuine and a reaction that would be shared by a reasonable person in 

the same situation.
716 Philibert v. Kluser

against the need to provide ex ante understanding of liability and assistance in the orderly administration of justice. See Thing, 48 Cal 3d at 664 (“We also weigh in the 

balance the importance to the administration of justice of 

clear guidelines under which litigants and trial courts may 

resolve disputes.”).8

III. APPLICATION

We return to the facts of this case. Plaintiffs are 

two brothers who watched their third brother die as a result 

of being hit by defendant’s negligently driven pickup truck. 

They allege emotional injuries, including depression and 

severe emotional distress. Examined in the light of the 

Restatement test set forth above, plaintiffs here state a negligence claim for recovery of emotional distress damage. 

The complaint alleges that plaintiffs’ brother was killed as 

a result of defendant’s negligence, that they saw the collision and watched their brother die, and that, as a result, 

they have suffered severe emotional distress. Based on 

those facts, plaintiffs’ complaint states a claim for relief for 

bystander recovery under the Restatement test.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is reversed, and the case 

is remanded to the circuit court for further proceedings.

8 The Restatement notes that 29 states apply some version of section 48. 

Restatement § 48 Reporters Note comment a.