Negligent Infliction of Emotional DIstress

Question 1

Threshold elements of NIED? (2)

Answer 1

P was within the zone of danger

P suffers some physical symptoms of distress

Question 2

“Near Miss” Fact Pattern: D nearly inflicts physical harm to P, but just misses. Plaintiff can recover if these two things are true . . .

Answer 2

P was in a zone of physical danger

P must experience subsequent physical manifestation of the distress (temporal proximity not a huge deal).

Question 3

Where threshold elements not necessary: “Bystander” Fact Pattern: Negligent D will inflict injury or death to X and P is upset about harm to X. Plaintiff can recover if these three things are true . . .

Answer 3

P must be a close family member of X

P was at the scene

P personally observed or perceived the event

Question 4

Where threshold elements not necessary: D may be liable for directly causing P’s emotional distress that leads to physical symptoms when a duty arises from the relationship between P and D, such that D’s negligence has great potential . . .

Answer 4

To cause emotional distress

Question 5

Medical patient and medical lab. Lab does careless job of handling sample. Tells Patient he is HIV positive. Patient is distressed. Lab eventually fixes. Is Patient entitled to recover for NIED? Why?

Answer 5

Yes

D may be liable for directly causing P’s emotional distress that leads to physical symptoms when a duty arises from the relationship between P and D, such that D’s negligence has great potential to cause emotional distress.

Question 6

The duty to avoid NIED may be breached when the D created . .

Answer 6

A foreseeable risk of physical injury to P.

Question 7

The plaintiff may be able to recover without proving the zone of danger and physical symptoms requirement where the D’s negligence . . .

Answer 7

Creates a great likelihood of emotional distress.