The personal injury attorneys at Lipkin & Apter understand the complexities that arise when accident witnesses, whether they are a family member or unsuspecting bystander, file personal injury lawsuits.

In 2007, a New Jersey woman was a personal witness to an accident that would claim her husband’s arm and leg.

The Hagerman's were in their van, backing out of their driveway, when a fallen power line started a fire in the vehicle’s rear. The couple made a safe, initial escape. However, to prevent an explosion, Mr. Hagerman went back to the car to turn off the engine. Mrs. Hagerman witnessed a severe charge rip through her husband’s body.

In this particular personal injury lawsuit, a jury awarded the Hagerman’s $20.5 million in damages, including $2 million to the accident witness—Mrs. Hagerman.

Laws of all states differ with regard to who can recover and what can be recovered in a personal injury lawsuit, following an accident. The details of the NJ case above are insufficient to know whether under the same circumstances, a wife who witnessed an identical accident in Illinois could recover for her own “personal injuries.”

In Illinois, the law is clear about when an accident witness can recover damages for emotional injuries resulting from merely witnessing an accident. The primary legal requirement is that the witness must be in the “zone of danger” and suffer some sort of real emotional trauma. The following two situations will illustrate the meaning of zone of danger, as necessitated to prove a personal injury claim in Illinois.

In Case 1, you are standing on a street corner waiting to cross the street, north to south. Traffic is heavy. You see a pedestrian crossing the street east to west, get hit by a car making a right hand turn on a red light. The pedestrian is seriously injured. You are shocked by this accident. Situation 2 is similar but here you are walking next to the person who gets hit by the right turning car. The car just misses hitting you. Again, you are shocked by what you see, and by “almost” getting hit.

In Case 2, you are in the "zone of danger" and could file a personal injury lawsuit for your emotional distress. In Case 1 you are not in the zone of danger, and could not successfully file suit, regardless of your level of distress.

Both of the situations above have to be distinguished from times when you can sue for injuries occurring to your spouse. This is a loss of consortium claim. It arises only in significant injury cases where the non-injured spouse is deprived of the companionship, services, and sexual relationship of the injured spouse.

Unless you are familiar with the technicalities of loss of consortium claims, it can appear silly, even spurious. Let's take another look at the injuries sustained by the husband in the New Jersey case above—a lost arm and leg. Think about how different this marriage might be after this incident, and its effect on the man’s wife (again details were omitted)— no more walks in the park, no more mowing the lawn, no more going to crowded public places, no more dancing, no more taking out the garbage or making home repairs, maybe an end to the couple’s sexual relations.

A spouse so impacted will have damages closely connected to the injured spouse’s trauma. While a loss of consortium claim can be filed anytime a spouse is injured, in a very practical way, this personal injury claim is reserved for the most serious injuries. As with all damage claims, the non-injured spouse carries the burden of proving an injury.

Where the injured spouse’s injuries are minor, a loss of consortium claim may indeed seem trivial to a jury, an effort to improperly obtain money from a lawsuit. Juries tend to react negatively when they feel a plaintiff is trying to take advantage of the legal system—never a good dynamic for a plaintiff. On the other hand, in a case where there are very serious injuries to your spouse, bringing a loss of consortium claim is absolutely proper to consider.

For more information on the rights of accident witnesses and spousal loss of consortium claims, please contact the personal injury attorneys at Lipkin & Apter. From our Chicago, IL law firm we serve clients throughout the state of Illinois and look forward to discussing your case with you.