NIED & ByStander Liability Flashcards
Where P suffers an emotional response to D’s negligent (but not intentional) conduct directed at P
Negligent Infliction of Emotional Distress
P suffers emotional harm secondary to actual physical injuries caused by negligent act v. P suffers emotional harm as a direct consequence of the negligent conduct
Parasitic Emotional Harm v. Negligent Infliction of Emotional Distress:
D has engaged in negligent conduct; and
P is in the immediate area of physical danger resulting from D’s negligent conduct a/k/a “the zone of danger”; and
P suffers serious and genuine emotional harm; uses an objective standard unless knew of specific sensibilities
Note: P need not suffer physical impact or physical injury
Negligent Infliction of Emotional Distress
Majority Rule:
Negligent conduct on part of D; and
Must suffer suffer a physical impact or physical injury even if not in immediate zone of danger (FL rule)
On the issue of serious harm, fraudulent claims weeded out
Negligent Infliction of Emotional Distress
Minority Rule:
Need not show in any physical danger, immediate or otherwise where negligent act consists of a violation of a civil or privacy right; mishandling of corpses, misdelivery of death message
Distress resulting from property damage not actionable where only negligence
Attorney malpractice generally not actionable unless results in loss of liberty
Negligent Infliction of Emotional Distress
Special circumstances exception:
P must be within zone of danger
P must fear for own safety
P must suffer physically manifested mental or physical injuries as a result of fear, or, as modified, must be at personal risk even though only in fear for the safety of another
Bystander Liability
Zone of Danger Rule:
Factors to be considered include
how near P was to the scene;
whether the shock resulted from direct emotional impact from contemporaneous observance rather than learning about it from a distance;
whether parties were closely related (not necessarily by blood or marriage)
Bystander Liability
Foreseeability Rule:
D commits a negligent act
D causes a third party serious bodily injury
P perceives event contemporaneously (see pg. 586, note 1
P is close member family member person suffering bodily injury
Bystander Liability
ReStatement:
The right to recover for emotional distress arising out of the loss of services (ranging from physical to emotional services) of a spouse (and potentially other members of the original plaintiff’s family)
Loss of Consortium:
Factors to be considered if expanding cause of action to others: duration of relationship; degree of mutual dependence, extent of common contributions, extent and quality of shared experience, same household, and emotional reliance
Must be brought at the same time as original claim and subject to defenses asserting against original claim
May overlap with negligent infliction of emotional distress; if so, cannot recover twice
Loss of Consortium:
A special relationship of trust and confidence has been developed in another who is in a dominant or superior position
D has breached that relationship by engaging in negligent conduct causing emotional distress
Traditional found between trustees, agents, guardians, executors, administrators, lawyers, and other professionals but has been extended to others
Breach of Fiduciary Duty
P may only recover damages for independent mental anguish where there is a showing of a breach of an independent duty except in a few instances (mistreatment of corpses or misdelivery of “telegrams”)
In other words there is no duty to refrain from negligent infliction of emotional distress
ABROGATION OF AN INDEPENDENT CAUSE OF ACTION FOR NIED
