Page 13 Flashcards
What is Negligent Infliction of Emotional Distress?
When a duty is owed to both a negligently injured person, and anyone that might foreseeably suffer emotional harm because of the injury
How do you discuss NIED on an essay?
First find negligence, then prove physical manifestations of emotional distress
What is the breach that occurs for NIED?
The person didn’t use reasonable care to avoid causing emotional distress to another individual
What are you liable for if you cause NIED?
Monetary damages to the injured person
Must you prove intent to inflict distress for NIED?
No, accidental infliction is enough
Does physical impact have to happen for NIED?
No
What are the two different types of people that can collect for NIED?
Direct victim and bystander
What is “direct victim recovery” for NIED?
This happens when the plaintiff is not a bystander, and the impact rule as well as the zone of danger rule apply
What is bystander recovery for NIED?
Plaintiff tries to recover for the emotional distress he suffered from the defendant’s injury to someone else, usually a family member
What is the split in authority about what is required to recover under bystander recovery for NIED?
- majority view: must’ve been within the zone of physical risk and there has to be a physical manifestation of the injury
- minority view: can recover if he was physically near the accident, had contemporaneous perception of it, was closely related to the victim, and physically manifested the emotional distress
What does contemporaneous sensory perception mean?
Was at the scene and aware, but doesn’t have to be simultaneous
What does the emotional distress have to be for NIED?
Beyond that likely to be suffered by an unrelated bystander
What are other names for the zone of danger rule?
Risk of impact, and near miss
What is the zone of danger rule for NIED?
Plaintiff must have been at risk of physical impact and must have suffered a physical manifestation of emotional distress
What are examples of a physical manifestation of emotional distress for NIED?
Heart attack, stomach trouble, etc.
What is the special case exception to NIED?
Courts will always find NIED in the following situations:
- negligent handling of a close relative’s corpse
- erroneous notification of a loved one’s death
What is the rationale for the special case exceptions to NIED?
Because the authenticity and severity are not questioned
Does there have to be impact, threat of physical danger, or manifestations of distress for the special case exceptions to NIED?
No
Is it possible to get a reward for the sentimental value of an object if the defendant should have foreseen the distress that would come from damaging it?
Yes
Who is included for closely related for NIED?
Blood relatives, marriage, those relatives living in the same house, occasionally fiancés, etc.
When is recovery sometimes allowed for NIED if the plaintiff arrives on the scene just after the incident occurs?
If it is before a material change in the situation happens (so the scene is as it was when the incident occurred, and the victim is essentially in the same condition, and the plaintiff wasn’t informed of the accident before coming on the scene).
What are the damages that can be gotten from NIED?
Can recover the full extent of the distress, even if it is beyond what a normally constituted person would have suffered
If someone dies, what are the issues you should look at?
- survival
- wrongful death
- loss of consortium
Do tort actions survive the death of either the tortfeasor or the injured person?
- CL: no
- modernly: yes for personal injuries or property damage that happen up to the time of death
Can there be recovery for a decedent’s pain and suffering?
Yes
Do most courts allow recovery for torts that invade the tangible interests of a deceased person, like defamation, right to privacy, etc.?
No
