Negligence: Absent Physical Injury

Question 1

What are the four negligence torts that may not result in physical injury?

Answer 1

• Negligent infliction of emotional distress
• Wrongful conception
• Wrongful birth
• Wrongful life

Question 2

What is negligent infliction of emotional distress (NIED)?

Answer 2

• D engages in negligent conduct and, as a result, P suffers emotional distress that has some sort of physical manifestation. (Courts don’t like this tort)

Question 3

Where must P be in order to prove NIED?

Answer 3

• Most jurisdictions require that P be in the zone of danger, meaning at risk of physical harm.

Question 4

What constitutes a physical manifestation for NIED?

Answer 4

• P must have suffered a physical manifestation of the emotional distress, which proves genuineness.

Question 5

What are some exceptions to the zone of danger and physical manifestation requirements of NIED?

Answer 5

• Exceptions to these requirements:
  o D negligently shares information about the death of a loved one.
  o D negligently mishandles a corpse.

Question 6

How can a bystander show that they suffered NIED?

Answer 6

• Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative.

Question 7

What are the elements of NIED via bystander action?

Answer 7

• P was located near scene of incident;
• P suffered severe emotional distress; and
• P had close relationship with victim (immediate family member).
  o EXAMPLE: Mom and Dad go out for a walk with Junior. Dad and Junior are holding hands and crossing the street; Mom stopped to tie her shoe. A negligently driven car runs over and severely injures Junior. Dad jumps out of the way. Mom watches the events. Mom and Dad both have heart attacks and sue the driver for NIED. Under the rules of common law, only Dad can recover because he was in the zone of danger. Would have direct and bystander action. Mom cannot recover.

Question 8

How can wrongful conception rise to a negligence tort?

Answer 8

• Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure.

Question 9

How can wrongful birth rise to a negligence tort?

Answer 9

• Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy.
• P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose.

Question 10

How can wrongful life rise to a negligence tort?

Answer 10

• Child’s claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy.