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The “Zone of Danger” Test

Typically, to recover for negligent infliction of emotional distress, a plaintiff needs to show that they are in the “zone of danger” when a loved one is hurt.  In a memorandum decision out of Division One recently, State Farm v. Slayton, the Arizona Court of Appeals affirmed the dismissal of a claim by parents who witnessed the freshly dead body of their son at the scene of an accident.

The appellants urged the Court to abandon the “zone of danger” test where “the injury suffered by the victim is fatal or severe; the victim and the plaintiff are related as spouse, parent-child, grandparent-grandchild, or siblings; and, the plaintiff has observed an extraordinary event, specifically the incident and injury or aftermath of an accident in gruesome detail.”  Reading between the lines, this extension of negligent infliction jurisprudence has apparently been accepted in other jurisdictions.

The Court of Appeals politely held that they were bound by Supreme Court precedent and that “[w]e assume that by seeking in our court a change in established supreme court law, they are essentially making their record as a prerequisite to asking the Arizona Supreme Court for a change in the law.”

My candid view is that the Slaytons are quite right to push for this modification of the antiquated “zone of danger” test.  The purpose of that test was to limit claims to where negligent infliction could be more readily anticipated and, it should be obvious, these types of circumstances are well-within our society’s expectations of foreseeable and extreme emotional distress.

Accordingly, look for a Petition for Reivew in this case and, hopefully, a revision of the existing law.

Geoff Trachtenberg is a partner at Levenbaum Trachtenberg, a personal injury law firm located in Arizona, California, and Utah. You can find him on and Avvo discussing law and helping people with their legal needs.

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