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Note – When Facetime Brings Dark Times: A Superior Approach to Bystander Negligent Infliction of Emotional Distress


Most United States jurisdictions do not allow a plaintiff to recover for negligent infliction of emotional distress as a bystander unless they witness the event firsthand and the plaintiff has a close familial relationship with the victim. However, a bystander will not always witness their loved one get injured directly. As technology use continues to rise and audio-video applications become more advanced, there is a greater chance someone could watch and hear another participant die or face great bodily injury in real-time. Proximity to the injured party should not preclude recovery. Although they are not physically present at the scene of the incident, they are experiencing all of the events that occur in real-time and experiencing all of the same feelings. Nevertheless, under current Pennsylvania law, a plaintiff would have no avenue of recovery simply because the perception of the event was virtual. Conversely, a case addressing this issue has recently been decided in California in which a virtual real-time perception of the event witnessed over a smartphone application satisfied the elements of the claim for bystander negligent infliction of emotional distress.

This Note argues that Pennsylvania should follow California’s approach to bystander recovery and allow plaintiffs to recover for negligent infliction of emotional distress even when their perception of the incident occurred virtually. Pennsylvania should make this change because it has adopted California precedent for this tort in the past, and this change would account for technological advancements in society. Also, this Note reasons that since Pennsylvania would be adopting California’s standard on the method through which a plaintiff perceives an event, it should also modify its approach to the close relationship requirement. By ensuring proximate causation between the incident causing the emotional distress and factually measuring the relationship between the victim and plaintiff, it will shift the potential plaintiff pool to account for significant changes in family dynamics and social norms.