Negligent Infliction of Emotional Distress

A defendant can be liable in negligence for causing emotional harm alone. Like any action for negligence, a plaintiff must be able to prove the five traditional elements of negligence. Because of the difficulties surrounding the proof of emotional harms, courts have imposed a variety of restrictions on such claims. These restrictions are especially prominent in claims of emotional distress arising from harms occurring to third parties.

A plaintiff alleging negligent infliction of emotional distress must prove all of the traditional elements of negligence. The plaintiff must prove the defendant had a duty, breached the duty, that the breach was the factual and direct cause of the emotional distress, and that there was actual emotional distress. One of the most difficult elements to satisfy is the proof of actual emotional distress. Generally speaking, a court will only recognize claims only in instances where a ‘normal’ person would suffer, and if the plaintiff suffered in-fact. Because of the largely non-observable nature of emotional harms, courts have imposed a variety of restrictions on what evidence or factual circumstances will give rise to cognizable emotional injury.

The restrictions are not uniform across the states. A restriction in some jurisdictions state that a person can only recover on emotional harms alone when there is a negligently delivered message (e.g. an incorrect announcement of a spouse’s death). Some states may only recognize emotional harms arising from the negligent mishandling of corpses. Some states require that a person have suffered suffers a physical impact of some sort, but this approach is generally disfavored. Some states do not require a physical impact, but do require a physical manifestation of distress like vomiting, nausea, depression, or other medically diagnosed harms. Some states allow claims if a claimant meets any of the above requirements, or if a preponderance of the evidence shows the plaintiff suffered severe emotional distress. Generally speaking, there must be at least some evidence of a frightening, shocking, or disturbing event that could palpably cause severe emotional distress.

As stated above, claims for negligent infliction of emotional distress require meeting all of the elements for negligence. One of the elements is that the harm be caused by the defendant, which in negligence requires that the harm be a reasonably foreseeable result of the conduct. This is a tricky analysis, especially when the claimant is merely a bystander to the more direct harms resulting from negligent conduct. Courts have developed a series of doctrines that determine when a bystander may recover for emotional injury.

The applicable doctrine depends on the jurisdiction of the suitlawsuit. Under the Federal Employer’s Liability Act, a claimant must be in the ‘zone of danger’ in order for the harm to be foreseeable. This test requires that the plaintiff was be in actual physical danger, have a close relationship with the actual victim, the victim must have appeared to have, or actually suffered serious injury or death, and that the plaintiff have a physical manifestation of distress. At one point this was also the common law rule, but the state courts have abandoned it in favor of others.

The most common approach amongst the states is the Dillon Rule. This test is actually a series of guidelines, the presence of which increase the likelihood of finding severe emotional distress. Emotional distress is more likely to be found when the plaintiff was at or near the scene at which another was harmed, actually knew of the injury or perceived an injury, and was related to the injured party. Because these Since These are not strict rules, a court can find emotional distress even in the absence of one of the elements. For instance, a mother could suffer distress from watching the attempted rescue of her child as he was currently being crushed and killed by an elevator (again, it is worth noting that claims for emotional distress really only rest in truly awful or traumatic events)– even if she was in no danger herself and had no direct knowledge that her son was actually dying.

California and other states have adopted variations of the Dillon rule. Under its test, a claimant for emotional distress would have to have been present and witnesses the accident that gave rise to the claim. This test also cut off all measures of foreseeability of the harm if the plaintiff was not a witness to the event. In addition to the presence requirement, other states’ variations include a requirement of serious injury or death, that the plaintiff suffered very severe emotional distress, or that there be a particularly close familial relationship.


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