I could have Died! Can I sue for almost being injured?

In general, you must suffer an actual injury in order to bring a personal injury lawsuit.  “Almost” being injured is not an injury in and of itself.   However, if you suffer mental anguish after experiencing a “close call” you may be able to bring a suit, but only under very narrow conditions. There are two kinds of “close call” cases.  The first we will call “Near Miss Cases” and the second we will call “Bystander Cases.”

In both cases, your mental anguish must be diagnosed and treated by a doctor and have some physical manifestation such as weight loss, hair loss, or other symptom that a doctor can look at and confirm.  Simply stating that you suffer from mental distress is not enough.  There absolutely must be a physical, tangible component that a doctor can objectively diagnose.

Near Miss Cases:

A Near Miss Case occurs when you are “almost” injured due to someone else’s negligence and you suffer mental anguish as a result of the fear you felt.  In order to make out a Near Miss Case you must prove:

  1. That you were in the “zone of danger,” meaning that you very narrowly escaped injury;
  2. That you suffer from some physical manifestation of your mental anguish that is diagnosed and treated by a doctor.

To be in the “zone of danger” you generally need to show that you would have been injured but, by some stroke of luck, you were not.  For instance, if you were standing on the sidewalk and a car jumped the curb, but a Good Samaritan pushed you out of the way, you may have been in the zone of danger.  On the other hand, if you were on the sidewalk and a car hits the curb, narrowly missing you, you probably were not in the zone of danger.

Bystander Cases:

A Bystander Case occurs when you suffer mental anguish from watching someone else get injured.  To make out a Bystander Case you must prove;

  1. You actually saw another person become physically injured, live, up-close and in real-time;
  2. You are closely related to the injured person, meaning they are actually a member of your immediate family;
  3. You must have been so close to the incident that you personally were in the zone of danger, as described above.
  4. That you suffer from some physical manifestation of your mental anguish that is diagnosed and treated by a doctor.

Bystander Cases are very difficult to establish.  An example of a viable Bystander Case would be where you and your spouse are crossing the street, a car starts speeding towards you and you jump out of the way but you watch your spouse get crushed under the car and manifest physical symptoms of emotional distress as a result of seeing this accident occur.  This same incident involving someone who is not a member of your family, even if they are your best friend, is not viable in New York State.  Watching this same thing happen on television, even if it was broadcast live, is not compensable in New York State.

If you or a loved one were injured due to someone else’s negligence, give us a call today to discuss your options.