## Facts

- Gregory Duwayne James and his sister, Demetria, were riding bicycles in Omaha, Nebraska.
- A garbage truck owned by Watts Trucking Service, Inc. and driven by its employee, John Milton Lieb, backed into the intersection, went through a stop sign, struck Demetria, and ran over her, killing her.
- Gregory directly observed the incident.
- Gregory allegedly became physically ill and suffered ongoing mental anguish and emotional distress from witnessing his sister’s death.
- Gregory’s parents sued on his behalf and individually, alleging negligent operation of the truck caused Gregory’s injuries.
- Defendants filed a demurrer asserting the petition failed to state a claim because it did not allege Gregory was in the “zone of danger” or feared for his own safety.
- The district court sustained the demurrer and dismissed the petition; plaintiffs appealed.

## Issues

1. Whether a bystander who directly perceives a close family member’s death may recover for negligent infliction of emotional distress without being in the “zone of danger” or fearing for personal safety.
2. Whether Nebraska law requires physical injury as a prerequisite to recover for negligent infliction of emotional distress in a bystander case.

## Decision

- The Nebraska Supreme Court reversed the dismissal and remanded for further proceedings.
- The court rejected the “zone of danger” requirement for bystander negligent infliction of emotional distress claims.
- The court adopted a foreseeability-based approach to determine whether a defendant owes a duty for a bystander’s emotional injury.
- The court overruled prior Nebraska precedent to the extent it conflicted with this foreseeability framework.

## Legal Principles

- Bystander recovery for negligent infliction of emotional distress is governed by reasonable foreseeability of the plaintiff’s emotional injury, not by whether the plaintiff was within a “zone of danger.”
- Foreseeability is assessed case-by-case under the specific facts and circumstances; the relevant considerations are factors, not fixed elements.
- The relationship between the plaintiff and the victim is the most important consideration in determining foreseeability; recovery generally requires a marital or similarly intimate familial relationship, and extended family members bear a heavier burden to show a sufficiently close bond.
- Proximity may be satisfied by the plaintiff’s actual sensory perception of the accident, rather than by strict geographic or danger-based limits.
- Liability depends in part on where, when, and how the injury to the victim entered into the plaintiff’s consciousness.
- The bystander’s emotional trauma must arise from the victim’s death or serious injury.

## Conclusion

The court allowed a bystander negligent infliction of emotional distress claim to proceed where a child directly witnessed his sister’s death, holding that duty and liability turn on foreseeability—especially close relationship and sensory perception—rather than zone-of-danger limits, and reversing dismissal at the pleading stage.


James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (Neb. 1985)