Negligent Infliction of Emotional Distress

Question 1

Ways of Recovering Damages for Emotional Distress

Answer 1

• infliction of emotional distress is one way, but not the only one
• if physical injury has been caused by commission of a tort, pl can “tack on” damages for emotional distress as a “parasitic” element of their physical injury damages
  -> would NOT need to consider the elements of emotional distress torts in such case

Question 2

Types of Negligent Infliction of Emotional Distress

Answer 2

• near miss cases
• bystander cases
• special relationship between pl + def

Question 3

Near Miss Cases

Answer 3

• duty to avoid negligent infliction of emotional distress may be breached when def creates a foreseeable risk of physical injury to pl

Pl must usually satisfy two reqs to prevail:
- must be within zone of danger
- must suffer physical symptoms from the distress

Question 4

Near Miss Cases - Zone of Danger

Answer 4

• pl considered w/in zone of danger of def’s negligent acts when pl is sufficiently close to def such that they are subject to a high risk of physical impact

Question 5

Near Miss Cases - Symptoms Requirement

Answer 5

• most courts require that the emotional distress caused by def’s conduct manifest itself in physical symptoms
  -> severe shock to the nervous system that causes physical symptoms will satisfy this requirement
• growing minority of states have dropped the physical symptoms requirement though

Question 6

Bystander Cases

Answer 6

Bystander outside the “zone of danger” of physical injury who sees def negligently injuring another can recover damages for own distress as long as:
- pl + person injured by def are closely related AND
- pl was present at scene of the injury + personally observed or perceived the event

• most states drop requirement of physical symptoms in this situation

Question 7

Special Relationship Between Pl and Def

Answer 7

• def may be liable for directly causing pl severe emotional distress when a duty arises from the relationship between pl + def such that def’s negligence has great potential to cause emotional distress
  -> relationship is typically commercial in nature
• ex: dr’s misdiagnosis that patient has terminal illness or mortuary’s negligent cremation of deceased contrary to instructions
• most states drop req of physical symptoms here