concurring:
I agree that Ora Lee was eligible to assert an emotional distress claim under State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). As Earnestine’s sister-in-law, Ora Lee was “closely related” to Earnestine, as a matter of law, for the purpose of standing to assert such a claim.
I note, however, that our adoption of Dillon in Eaton has inevitably required re-examination of the standing issues raised in these matters. I write separately because I would prefer, while this doctrine is still in its developmental stage, to consider these claims, on appeal, on a case-by-case basis. Specifically, I would not adopt a rigid rule restricting standing, nor, as suggested by Rose, J., would I adopt a general rule that standing is a jury question to be resolved, based upon the subjective nature of the relationship between a bystander and the physically injured party. Instead, I recognize that some individuals, as a matter of law, will not have standing to assert an Eaton emotional distress claim while others, as a matter of law, will have standing. In a few close cases, the trial court may not be able to determine the standing question as a matter of law. Only in these close cases should the trial court submit the standing issue to the jury.
I also note that, where the issue of bystander recovery is submitted to the jury, whether in close cases or cases where standing has been determined as a matter of law, the trial court must separately instruct that the closeness of the relationship is an issue of fact with respect to damages.
Turning to the dissenting portion of the separate opinion of Young, J., my colleague raises a most interesting issue concerning the application of separate liability “caps” with regard to Lewis Hill’s claims for his own personal injuries and his additional NIED damages sustained for witnessing the death of his wife. See NRS 41.035 (defining the limits of liability of government entities under Nevada’s qualified waiver of sovereign immunity). The majority observes that the dissent ignores the holding of State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). Webster implicated multiple “caps” in the context of separate claims arising from a single incident by a single plaintiff for her own personal injuries and for wrongful death damages arising from fatal injuries to a relative which included damages for grief and sorrow. The dissent notes that Lewis has already received a settlement for his separate wrongful death claim, and that the imposition of a separate “cap” would create a duplicate recovery, arguing that both NIED and wrongful death recoveries are based upon infliction of emotional distress. Thus, the dissent reasons that the majority has expanded the qualified waiver of sovereign immunity beyond that contemplated by the legislature.
*820Certainly, in addition to his “wrongful death” settlement, Lewis has now received separate jury awards for his own personal injuries and for his emotional distress arising from apprehending the fatal injuries suffered by his wife. As this court has stated, an NIED claim constitutes an independent and separate cause of action. Thus, if Webster is taken to its logical conclusion, the majority correctly implicates three separate liability “caps.”
We have not departed or retreated from Webster in the twenty-six years since it was decided. If the dissent is correct, we would arguably have to overrule Webster because it was wrongly decided. Simply stated, the Webster scenario, at best, only offers distinctions without any substantive differences.1 At this point, we should defer to the legislature on the question of whether we misconstrued the meaning of “causes of action” in 1972, and whether we continue to do so today.
While Lewis did settle his wrongful death claim, the injury components, although similar, are different. See NRS 41.085(4). Grief and sorrow under NRS 41.085(4) may be distinguished from damages arising from “apprehending” a loved one’s catastrophic injuries. Thus, because claims for direct injuries, wrongful death and NIED damages are separate “actions” as defined in Webster, separate caps are implicated.