Study On The Bystander Liability Of Negligent Infliction Of Emotional Distress

In American tort law, bystander liability refers to a form of pecuniary liabilitywhich defendant incurs for the reason that he inflicted serious physical injuries to thevictim, to whom the plaintiff that simultaneously perceived the accident and receivedserious emotional distress accordingly is closely related.There are two salient characteristics in bystander liability, namely, the expansionof legal duty and pure emotional loss. One aspect could be safely observed in a typicalbystander case, in which two levels of torts and three parties are involved, in contrastto a common tort case, in which only one level of tort and two parties. This bizarremodel of bystander liability could be dissembled into two levels of torts. For one level,the defendant tortuously hurts the victim, which results in serious physical injury. Theplaintiff is a total bystander, the safety of whom normally does not concern him.However, it is the other level that actually matters, for the bystander liability is thenormative relation between the defendant and the plaintiff in essence. The otheraspect depicts that neither physical injury nor physical injury resulted from emotionaldistress of the plaintiff is required or recovered.Thanks to its peculiar formalism and independent function, bystander liabilityenjoys the status of a basic tort liability, which manifests its particular normative logicand distinguished method of remedy that is not covered by any other torts alike, suchas negligent conduct directly inflicting emotional harm on another, direct victim,active participant, action by one spouse for harm caused by tort against other spouseand wrongful death.Historically, American courts used to deny any remedy to any pure emotionaldistress, let alone bystander liability. Not until the intentional infliction of emotionaldistress retained its legitimate title in the hierarchy of tort law, did courts give aserious consideration to the possibility that the bystander could qualify herself for adecent plaintiff as appropriate as those who were directly affected by tortuous act, ifnot more than. Unfortunately, it was the same or at least similar justifications，towhich courts had resorted in order to support their denial of all pure emotional distress,that played as formidable foes in front of bystander liability. Eventually, due to theprosperity of science especially the rapid development of psychology, the judicialtechnology grasped a golden chance to evolve accordingly, which gave a rise to thelong due expansion the scope of duty that included the bystander liability with reliable and practical means of evaluation. In more than half a century since the Dillon case in1968, American courts devised and adopted miscellaneous ingenious mechanism tosuccessfully ensure that the remedy to plaintiffs not rendered at the cost of thefreedom of defendants, which itself suffices a good case in point that bystanderliability is not a chimera that cannot be leashed.On one hand, the coherence of bystander liability, which is strictly required bythe internal justification of tort law, is safely guaranteed by the highly sophisticatedprima facie elements. To be specific, the normative requirement of severity andforeseeability of injury and wrongfulness of the act of defendant are all thoroughlyaccommodated within the institution of bystander liability. On the other hand, with thedeeply rooted background of legal pragmatism, American courts activate bystanderliability to achieve several utilitarian goals like to maintain normal familialrelationship, to preserve the traditional concept of marriage and family and to servethe efficiency need of judicial branch. Some courts even adopt Hand formula topresent bystander liability a law and economics stand. All those attempts function asthe external justification of bystander liability in comparison to its internalcounterpart.The prima facie elements of bystander liability serve with a single purpose, thatis, to test plaintiff’s substantive claim, which labours to satisfy the requirement ofcoherence that is the prerequisite to the foreseeability of liability. A empirical researchof American cases would reveal:(1) the simultaneous perception and close relativerequirement have nothing to do with the objectivity and truthfulness of emotionaldistress;(2) the foreseeability of liability is well ensured by elaborate patterns ofinstitutional designs;(3) punitive damages is a much better alternative tocompensatory damages in cases that defendants act being malicious, wanton orreckless.As for the Chinese legal practice of bystander liability, although over decadeslower courts granted remedy to plaintiff according to the interpretation and instructiveopinions from the Supreme Court, this kind of tort liability has not been officiallyrecognized by the Chinese Tort Liability Law yet, which could not be commented asnothing else but a pity. Not only dose the blankness of Chinese tort law lead to thetragedy of genuine plaintiff being deliberately ignored, but also probably set themistreatment towards defendant in motion whenever courts decide to exploit theirdiscretion. A comparative study on the American bystander liability can be of constructive value to reverse the current distortion and perfect the Chinese TortLiability Law.This dissertation is concentrated on the actual status of American bystanderliability，which is conducted in order to offer a brief view of the picture as a whole bymeans of empirical study of real cases, with the purpose to ascertain the actualjustifications acknowledged by American courts relying on historical induction, andaiming at the innovation and optimization of Chinese Tort Liability Lawimplementing a survey both on the newest theoretical accomplishment and judicialtrends. Finally, this dissertation will present the specific institutional design basing onour domestic reality, focusing on the localization of constitutional elements and themethod to reach the amount of damages.