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.Thisliberalization allowed recovery in cases in which mothers or other caregiversof children narrowly escaped physical injury but nevertheless suffered emo-tional harm primarily because they feared for their child s safety.Because the danger zone rule was based on a risk of physical harm, however, it did notrepresent a tremendously significant departure from prior law with its insis-tence on linking physical harm to the plaintiff.The landmark case of Dillon v.Legg, decided by the California SupremeCourt in 1968, broke from this tradition, furthered liberalized recovery, and,we suggest, may have altered the basic trajectory of bystander cases.69 ThatNegligence | 113 case involved a mother who suffered nervous shock when she witnessed herchild run down by a negligent driver.At the time, the mother was in a posi-tion of safety outside the physical danger zone.The California Supreme Courtnevertheless allowed the claim and crafted guidelines for courts to follow insuch cases.The Dillon factors, as they became known, permitted recoverywhen (1) plaintiff was located near the scene of the accident, (2) the shock toplaintiff resulted from a direct emotional impact upon plaintiff from sensoryand contemporaneous observance of the accident, and (3) plaintiff and theaccident victim were closely related.In retrospect, the most innovative aspect of Dillon was its blending ofindividualistic and relational harm.Unlike traditional recovery for emo-tional distress in direct victim cases, Dillon did not provide a rule of universalrecovery but limited claims to close family members.This family members limitation resembles the restriction typically placed on tort claims for wrong-ful death and loss of consortium, which compensate directly for damage toimportant personal relationships.70 Thus, in relational harm cases, damagesare predicated directly on the adverse change in both pecuniary and nonpe-cuniary terms that defendant s negligence caused in plaintiff s life becauseof the absence or injury of the loved one.There is no need for such relationalclaimants to witness the accident or the injury.In contrast, in the Dillon-typebystander claim, only a first-hand witness to the accident is given a claim.This requirement not only limits the number of claimants but also is said torestrict compensation to those who suffer the extra trauma of such a first-hand experience.This aspect of the negligent infliction of emotional distressclaim fits more comfortably with other negligent infliction claims with theirfocus on damage to the individual; from this perspective, the bystander claimis still basically a nonrelational claim in which severe distress just happens toflow from the perception of suffering by another.Under this view, the fam-ily member requirement serves mainly to guarantee the genuineness of thedistress and to limit the number of potential claimants.Dillon s reception in other jurisdictions has been uneven.The Restate-ment reports that fourteen states have rejected it outright and have clungto the danger zone rule; four jurisdictions have even continued to insist onproof of physical impact.71 However, some variation of Dillon is now in forcein twenty-nine states, allowing the Restatement to adopt a rule authorizingrecovery when the plaintiff perceives the event contemporaneously and is aclose family member of the person suffering the bodily injury. 72To some degree, this liberalization of the bystander rule recognizesthe special harm that mothers and other close family members suffer114 | The Measure of Injury in such situations.However, the courts experience with applying Dillonhas brought its own difficulties, particularly because of the artificial linedrawing created by the requirement that a plaintiff witness or contempo-raneously perceive the traumatic event.Thus, recovery has been deniedto parents who see the bloodied body of their child moments after theaccident occurs or shortly thereafter at the hospital
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