dissenting.
¶ 28 The majority affirms the trial court’s grant of summary judgment and concludes that a co-worker and friend of a negligently injured person cannot recover for emotional distress suffered from witnessing the injury to that person. Because I believe that relationships between co-workers and friends can be enduring, substantial, and sealed by strong emotional bonds, and are therefore appropriate for jury consideration, I respectfully dissent.
¶ 29 Appropriately, the majority looks first to the laws of Arizona and then cites our supreme court in Keck, which they contend limits the right to recover to a party who has a blood or familial relationship with the injured party. In Keck, the court was dealing with a situation in which a daughter witnessed an injury to her mother. See 122 Ariz. at 114, 593 P.2d at 668. However, the emphasis of the court’s decision was directed toward recognition, for the first time in Arizona, of the tort itself. See id. at 115-16, 593 P.2d at 669-70.
¶ 30 Although it was not the crux of the case, in setting out the elements required for the tort of negligent infliction of emotional distress, the Keck court limited the right to recover to a party who has a “close personal relationship, either by consanguinity or otherwise,” with the victim. Id. at 116, 593 P.2d at 670. The majority now concludes that the Keck court meant to limit recovery to those who have a close, familial type relationship with the victim. To support this theory of limitation, the majority points to the Keck court’s references to Prosser’s treatise on torts and the Hawaii case of Leong. I believe that if the supreme court had preferred to establish a relationship limitation, it would have so stated and would not have appended the words “or otherwise.”
¶31 The Keck court referred to a statement from the fourth edition of Prosser’s treatise that there should be some limitation on recovery for emotional distress and that “[t]he action might, at least initially, well be confined to members of the immediate family of the one endangered, or perhaps to husband, wife, parent, or child, to the exclusion of mere bystanders, and remote relatives.” William L. Prosser, Handbook of the Law of Torts, § 54, at 335 (4th ed.1971). However, the fifth edition of the treatise omits the above-quoted language:
It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 366 (5th ed.1984). Although the fifth edition speaks about distant relatives and friends, it puts them in the context of a person who merely hears about an accident, but does not witness it. This is a concept with which Arizona law is in accord.
¶32 The Hawaii case cited in Keck held that a step-grandson could bring a claim for negligent infliction of emotional distress after witnessing the death of his step-grandmother, even though the two shared no blood ties. Leong, 520 P.2d at 766. The majority emphasizes the Hawaii Supreme Court’s discussion of the strong ties that exist among Hawaiian and Asian family members and the existence of a quasi-family relationship in Leong. However, the Leong court took its analysis one step further when it stated that *560a plaintiff “should be permitted to prove the nature of his relationship to the victim and the extent of damages he has suffered because of this relationship.” Id. Similarly, following its reference in Keck to the fourth edition of Prosser’s treatise on torts and Leong, our supreme court stated, “The problem of limiting bystander recovery can be justly resolved by treating each case on its own individual facts----” 122 Ariz. at 116, 593 P.2d at 670.
¶ 33 The majority also relies on California case law, which they believe supports limiting recovery to close family relationships to the exclusion of unmarried co-habitants and friends. However, it appears to me that California may be making a policy decision about relationships that I believe would best be left to our legislature.
¶ 34 Many states are moving in the direction of allowing a jury to decide the magnitude of the relationship between a plaintiff and the injured person. As the majority points out, the New Jersey Supreme Court has interpreted its requirement that a plaintiff demonstrate “a marital or intimate, familial relationship between the plaintiff and the injured person” to potentially include co-ha-bitants, fiancés, and others with strong emotional bonds. Dunphy, 642 A.2d at 374, 380. New Jersey leaves it to the jury to determine the “intimacy and familial nature of such a relationship.” Id. at 378. A New Jersey jury must consider the following factors:
[Tjhe duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and ... “whether the plaintiff and the injured person were members of the same household, them emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life’s mundane requirements.”
Id. (quoting Dunphy v. Gregor, 261 N.J.Super. 110, 617 A.2d 1248, 1255 (1992)). In concluding that it should be left to the jury to determine the nature of the relationship that existed between the plaintiff and the injured person, the court stated:
Our courts have shown that the sound assessment of the quality of interpersonal relationships is not beyond a jury’s ken and that courts are capable of dealing with the realities, not simply the legalities, of relationships to assure that resulting emotional injury is genuine and deserving of compensation____ Likewise, each time a court or jury assesses damages for loss of consortium, the quality of the relationship and thus the severity of the loss must be inquired into by the factfinder.
[W]e are unpersuaded ... that without a “bright line” definition of the bystander-victim relationship, courts will not be able to counteract fraudulent and meretricious claims. That consideration does not outweigh the need to recognize claims that are legitimate and just.
Id. at 378 (citations omitted).
¶ 35 The Massachusetts Supreme Court has also recognized that the nature of the relationship between a bystander-plaintiff and the injured person is an issue that can be resolved by the jury. It stated:
Every effort must be made to avoid arbitrary lines which “unnecessarily produce incongruous and indefensible results.” The focus should be on underlying principles ____ [Wjhether there should be liability for the injury sustained depends on a number of factors ... [including] what degree there was of familial or other relationship between the claimant and the third person____ In some instances, it will be clear that the question is properly one for the trier of fact, while in others the claim will fall outside the range of circumstances within which there may be liability.
Dziokonski v. Babineau, 380 N.E.2d at 1302 (citations omitted).
¶ 36 In a case with facts similar to ours, the Ohio Court of Appeals held that even though Ohio allows recovery for bystanders who are close friends of the injured person, the plaintiff in that case did not demonstrate as a matter of law that she had a close enough relationship with her injured friend to warrant recovery. See Smith v. Kings Entertainment Co., 99 Ohio App.3d 1, 649 N.E.2d 1252, 1253 (1994). In Smith, a group *561of friends was walking across a bridge at an amusement park when one of the people in the group touched a stream of water coming from a fountain. See id. at 1252. The water was electrically charged, and he received a “surge of electricity [that] caused him to lose consciousness and to fall into the pond.” Id. Another member of the group, Haithcoat, jumped in the water to help his Mend and was also electrocuted. See id. Haithcoat died as a result of his injuries. See id. at 1258. The plaintiff, Smith, was a member of the group and witnessed the whole ordeal. See id. at 1252-53. The majority found that her claim failed as a matter of law because under Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983), the Mai court makes an initial determination whether the relationship was sufficiently close so that the injury was foreseeable. See Smith, 649 N.E.2d at 1253. Despite the fact that Smith and Haithcoat had frequent contact with each other, the majority concluded that the relationship was not sufficiently close in this case because of the short duration of the Mendship (one and one-half years) and the lack of romantic involvement between the two friends. See id. However, the dissenting judge wanted to go even further:
The fact that Smith and Haithcoat were only Mends has, to me, a bearing only on the extent of her damages, not on her right to recover. The jury can easily be instructed that that is one factor they may consider when determining her damages. I believe this is consistent with the flexible case-by-case approach suggested in Paugh.
Id. at 1254.
¶37 Finally, I find favor in a dissent by the chief justice of the Nevada Supreme Court on this point. See Grotts v. Zahner, 989 P.2d 415, 417-18 (Nev.1999). In Grotts, the majority of the Nevada Supreme Court overturned the plurality opinion in Nevada ex rel. Department of Transportation v. Hill, 114 Nev. 810, 963 P.2d 480 (1998), which held that the determination of the closeness of the relationship between the bystander and the person injured is generally a question for the jury, but a trial court could determine as a matter of law that the relationship was not sufficiently close in a given case. See Hill, 963 P.2d at 484. In Hill, Justice Rose opined:
For example, a rule that would deny recovery to a plaintiff who “merely because of happenstance” witnesses the death or injury to his fiancée in an accident which occurs on the way to the wedding ceremony, yet permits recovery if an accident occurs on the couple’s way to the wedding reception, is fallacious.
963 P.2d at 483. The majority in Grotts decided to reject the plurality in Hill and draw a bright-line rule that any non-family relationship would fail as a matter of law, and even family relationships beyond the immediate family would be closely scrutinized. See Grotts, 989 P.2d at 416. In his dissent, now Chief Justice Rose defended Hill and chastised the majority for prematurely rejecting it, stating:
The rule adopted by the majority requires a relationship by blood or marriage before one can claim to have a close relationship for purposes of pursuing damages for negligent infliction of emotional distress. While this rule will be predictable, it will permit some people to pursue this claim who have no close relationship, and yet prohibit others who have a loving, close relationship with someone injured or killed from pursuing these claims merely because they are not related by blood or marriage.
The case at issue provides a good example. Kellie Grotts and John Colwell were very much in love and expected to marry in the near future. They were at the zenith of love and commitment. Numerous plays and novels have been written about the great loss suffered when this type of relationship ends with the death of one party. Yet the majority denies Kellie Grotts’ claim for emotional distress caused as a result of witnessing the death of the love of her life and constant companion simply because their wedding date was a few months off. This same scenario could happen to an older man and woman who, for a variety of reasons, had lived together for years but were not formally married.
And the unfairness of the rule adopted today does not stop there. Anyone living in a non-traditional relationship will be de*562nied the chance to recover emotional distress damages, while those living together with benefit of marriage will not suffer such prejudice. It is a fact of life that many gay men and lesbian women have partners with whom they have lived for decades and shared a close, loving relationship. These individuals will be denied the right to even claim damages for emotional distress for witnessing injury or death to their partner for no other reason than that they are not legally married, a status they cannot prevent. The closeness of two people should be judged by the quality and intimacy of the relationship, not by whether there is a blood relationship or whether a document has been filed at the court house. A segment of our population should not be denied legal redress simply because of their lifestyle.
The rule we adopted in Hill permits a judge to first scrutinize the claim of emotional distress to determine if the relationship is sufficiently close to create an issue of fact to present to a jury. If it is, the jury will then hear all the facts of the case, including the nature of the relationship existing between the plaintiff and the party injured or killed. We ask juries to make all sorts of difficult determinations and deciding the closeness of a relationship is a judgment juries are uniquely qualified to make. Leaving this factual determination to the jury would give Nevada a reasonably flexible rule that does not arbitrarily bar those who would otherwise be able to establish a close relationship. The majority of the court once saw the wisdom of this rule.
Id. at 417-18 (citation omitted).
¶ 38 In the case before us, appellants claim that the evidence supports the conclusion that their relationship with Matthews was like that of siblings. One can speculate that the testimony elicited by appellees will be to the contrary, leaving the fact finder to draw its own conclusions. Whatever the magnitude of appellants’ relationship with Matthews, the determination is something that should be decided by a jury. Juries return verdicts in difficult cases every day. I do not believe that it is too much to ask a jury to decide if a plaintiffs personal relationship with the injured party would support a cause of action for negligent infliction of emotional distress.
¶ 39 The majority admits reluctance to extend the outer limits of recovery for negligent infliction of emotional distress. Yet, for these plaintiffs, that is exactly what the court has done. The distinction that I make is that the determination should be for the jury. I would reverse the trial court’s grant of appel-lees’ motion for summary judgment.