Negligent Infliction of Emotional Distress Flashcards
Negligent infliction of emotional distress
a) Negligence
b) Causation of severe mental distress
c) Proof of genuineness:
1. Physical impact
2. Physical consequences
3. Invasion of a legally protected interest
4. Compelling factors
5. Other evidence
d) Proof the plaintiff was the primary victim or a bystander who is entitled to recover
Direct infliction - impact rule
Emotional distress was only allowed as a claim that could be brought if there was physical harm or impact first upon the plaintiff
Risk of impact rule
The majority rule now allows recovery for mental distress if the plaintiff was at risk of impact or the plaintiff was within the zone of danger. Generally requires some form of physical manifestation of the distress
Indirect impact or bystander
Proximate cause with a duty to someone else
Zone of danger (majority)
The bystander was likely in fear for their life
a) The plaintiff has suffered emotional distress because of physical injury to another
b) The plaintiff is within the zone of danger
c) The plaintiff is closely related to the victim
Foreseeability in light of the plaintiff (minority)
Includes proximity, observation, and an established relationship
Dillon v. Legg
Where the state extends rights of bystanders to recovery where they were not at physical risk
a) Whether the defendant was near the scene
b) The plaintiff has contemporaneous sensory perception of the accident
c) They must be closely related
Direct victim
If the distress results from the breach of a duty owed to the plaintiff
Bystander
If the distress results from observation or knowledge of harm to another
Alternatives for recovery
Loss of consortium, wrongful death, and breach of fiduciary duty
Fiduciary relationships
Characterized by trust and confidence, must arise as a matter of law or fact, and impose demanding obligations
