Understanding the Law: Bystander Recovery After Tragedy Strikes

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not “compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.” Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. “The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable,” as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. “There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence.”

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.


For assistance in answering these difficult legal questions on bystander recovery and representing your interests in court, please call the Berniard Law Firm at (504) 521-6000.

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