See ORCP 21 A (authorizing that procedure). The Court of Appeals affirmed, Lowe, 207 Or App at 534, and we allowed review to consider whether plaintiffs complaint stated a negligence claim under Oregon law. Before turning to the parties’ arguments, we begin by noting what this case does not involve. This is not a case in which plaintiff has alleged that she has suffered any present physical harm as a result of defendants’ negligence and seeks damages for her fear of developing cancer, for the increased risk of developing cancer that she faces, or for the costs of medical care to determine the extent of her harm. In such a case, as defendants conceded below, a plaintiff could obtain damages for those harms upon proper proof. See Zehr v. Haugen, 318 Or 647, 656-57, 871 P2d 1006 (1994) (<HOLDING>). Rather, plaintiff alleges only that a
holding that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if but only if said plaintiff 1 is closely related to the injury victim 2 is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim and 3 as a result suffers serious emotional distress holding that the fatal injury to a murder victim may be considered as satisfying the bodily injury component of the capital felony of kidnapping with bodily injury holding that bodily injury does not include purely emotional injuries holding that it was a double jeopardy violation to convict and sentence for both dui with serious bodily injury and driving without a valid license with serious bodily injury based on an injury to a single victim recognizing that when a defendants negligence causes bodily injury the plaintiff can recover damages for past present and future medical expenses bodily injury and emotional distress