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Third Circuit Rejects Plaintiff’s Zone of Danger Theory In Claim For Emotional Distress (PA)

August 25, 2023

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In recent case, <em><a href="">Russell v. Educational Commission for Foreign Medical Graduates</a>, </em>the United States Third Circuit Court of Appeals held that under Pennsylvania law, “[t]o uphold a claim for [negligent infliction of emotional distress (“NIED”)] under a physical impact theory, a plaintiff must show that he or she suffered ‘immediate and substantial physical harm,’ and [reaffirmed prior Pennsylvania Supreme Court precedent] that NIED provides a remedy for ‘trauma derived from a <em>contemporaneous</em> physical impact.”’ (internal citations omitted). The Court also held that to uphold a claim for NIED under a “zone of danger theory” a plaintiff must (1) have been “in personal danger of physical impact because of the direction of a negligent force against him or her and (2) actually feared the physical impact” at the time when the physical impact was occurring or at risk of occurring.

Plaintiffs here were “a putative class of patients who received obstetric medical treatment from a person who turned out to be a fraud, and eventually “pleaded guilty to ‘misuse of a social security account number to fraudulently obtain a Maryland medical license.’”

As part of the lawsuit, Plaintiffs asserted a claim for NIED, alleging that the realization that their supposed obstetrician was a fraud, coupled with their memories of their past physical treatment with this fraudster, caused emotional distress. Plaintiffs appealed a dismissal by summary judgment and on appeal,  the Third Court began its analysis with the settled premise, that “[t]raditionally, to prevail on a claim of NIED under Pennsylvania law, a plaintiff had to show that there was a “physical impact.” The Court recognized the three exceptions to the physical impact requirement: “(1) ‘the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury;’ (2) the plaintiff observed a tortious physical injury to a close relative; or (3) the defendant had a contractual or fiduciary duty toward the plaintiff. Of these exceptions, only “zone of danger” was argued by Plaintiffs and addressed in detail by the Court.

The Court held that the “zone of danger” is only applicable when two elements are satisfied: where a would-be Plaintiff “(1) was in personal danger of physical impact because of the direction of a negligent force against him or her and (2) actually feared the physical impact.” From here, the Court concluded that Plaintiffs could not succeed under a zone of danger theory because at the moment when they were in personal danger of the negligent physical impact, Plaintiffs had not yet learned of the fraud being perpetuated, and thus had no reason to be in fear of that physical impact. Accordingly, the Court affirmed the District Court’s ruling granting summary judgment to the Commission.

Thanks to Stephen Kerstein for his assistance with this article.  Should you have any questions, please contact <a href="">Tom Bracken</a>.

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