While sitting in diversity, a federal court must apply the substantive law of the state in which the court sits. Thus, we look to Michigan law for an understanding of the tort alleged in the present case. The Toms court limited its ruling to a bystander who witnesses the negligent infliction of tortious injury upon an immediate family member. The injury inflicted on the third person must be serious enough to cause severe mental disturbance to the plaintiff. The mental shock must result in actual physical harm.
Recovery is limited to members of the immediate family of the third person who is injured.
The bystander-plaintiff must be present at the time of the accident, or at least the shock must be fairly contemporaneous with the accident. The Bystander Recovery Rule applies to a plaintiff who observes or witnesses the negligently inflicted injury of a third person. One present but not taking part, looker-on, spectator, beholder, observer. The definition suggests that Maldonado was more than a mere bystander. He was even close enough to touch Hurley when the accident occurred.