Legal Memorandum: Emotional Distress Claim in IL

Issue: In Illinois, what determines negligent infliction of emotional distress?

Under the test adopted in Rickey v. Chicago Transit Auth., 98 Ill. 2d 546, 457 N.E.2d 1 (1983), to recover for negligent infliction of emotional distress a plaintiff must establish he or she was within the zone of physical danger and had a fear for his or her own safety.  457 N.E.2d at 5.  The test is still consistently applied in Illinois.  See Seef v. Sutkus, 205 Ill. App. 3d 312, 562 N.E.2d 606, 608 (1st Dist. 1990), aff’d, 145 Ill. 2d 336, 583 N.E.2d 570 (1991).

Illinois’ persistence in adhering to the zone-of-danger rule has been criticized.  See Edward A. McCarthy, Illinois Law in Distress: The “Zone of Danger” and “Physical Injury” Rules in Emotional Distress Litigation, 12 J. Marshall L. Rev. 17, 32-38 (1985).  It is submitted that better policy would be adoption of a rule or result similar to that reached in Archibald v. Braverman, 275 Cal. App. 2d 253, 79 Cal. Rptr. 723 (1969).  In that case, a mother arrived at the scene of an explosion after the fact, but in time to see her thirteen-year-old son suffer severe injuries.  In sustaining her cause of action the court said: “Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself.”  79 Cal. Rptr. at 725.  No zone-of-danger rule applied.

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