T8 - NIED

Question 1

Negligent Infliction of Emotional Distress

Answer 1

•NIED: You can bring an action for infliction of emotional distress to recover damages for emotional distress, OR
• In physical injuries cases, Plaintiff can also recover emotional damages.
If physical injury has been caused by commission of a tort, the plaintiff can “tack on” damages for emotional distress as a “parasitic” element of their physical injury damages, without the need to consider the elements of the emo- tional distress torts.

Question 2

NIED: Near Miss case

Answer 2

Negligent D ALMOST hit the plaintiff.
P can recover for the emotioanl distress (fear, anxiety, fright) caused by the near-miss by showing:
• D was negligent
• Plaintiff was in zone of physical danger.
• Plaintiff suffers physical symptoms from distress.

The duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injury to the plaintiff.
The plaintiff usually must satisfy two requirements to prevail:
• P must be within the “zone of danger”
• P must suffer physical symptoms from the distress

ZONE OF DANGER: plaintiff will be considered to be within the zone of danger of the D’s negligent acts when the P is sufficiently close to the defendant such that they are subject to a high risk of a physical impact.

P Must Suffer Physical Symptoms from the Distress: In a near miss case, most courts require that the emotional distress caused by D’s conduct manifest itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement).
A growing minority of states have dropped the requirement of physical symptoms.

Question 3

NIED: Bystander case:

Answer 3

D negligently injures 3rd party (X) causing Plainitff Emotional distress (grief, sadness, melancholy) [P is disturbed by what happened to X].

Plainitff must show:
• D’s negligence
• Plaintiff and 3rd party CLOSELY related (close family members: Spouse, parent, child (minor child)).
• P present at the scene and observed event.
——————————–
A bystander outside the “zone of danger” of physical injury who sees the D negligently INJURING another can recover damages for their own distress as long as:
• P and the person injured by the D are closely related.
• P was present at the scene of the injury and personally observed or perceived the event.

Most states drop the requirement of physical symptoms in this situation.

Question 4

NIED: SPECIAL RELATIONSHIP BETWEEN P AND D.

Business relationship cases

Answer 4

Plaintiff can recover if HIGHLY FORESEEABLE that careless performance by D will produce emotional distress.
Examples of Business relationships where emotional distress is highly foreseeab;e:
• Patient/medical labratory: providing false positive results.
• Customer/funeral parlor:
• NOT customer/dry cleaner.
———
The D may be liable for directly causing the P severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the P and a D, such that the D’s negligence has great potential to cause emotional distress
(ex, doctor’s misdiagnosis that patient has terminal illness; mortuary’s negligent cremation of deceased contrary to family’s instructions).
Most states drop the requirement of physical symptoms in this situation as well.

Question 5

IED: INTENTIONAL (IIED)

Conduct Required:

Fault Required:

Causation and Damages:

Bystander recovery:

Answer 5

IED: INTENTIONAL (IIED)

Conduct Required: EXTREME and OUTRAGEOUS conduct by D.
—- “Exceeds all bounds of decency tolerated in a civilized society.”

Fault Required: INTENT to cause severe emotional distress OR RECKLESSNESS as to the effect of the conduct.

Causation and Damages: D’s conduct must cause severe emotional distress.

Bystander recovery:
(1) P bystander must be PRESENT when conduct occurs,
(2) distress must result in bodily harm, or P must be a close relative of the 3rd party, AND
(3) D must know these facts or have intent to cause P distress.

Question 6

IED: NEGLIGENT (NIED)

Conduct Required:

Fault Required:

Causation and Damages:

Bystander recovery:

Answer 6

IED: NEGLIGENT (NIED)

Conduct Required: Subjecting P to THREAT of PHYSICAL IMPACT OR SEVERE Emotional Distress likely to cause PHYSICAL SYMPTOMS

Fault Required: NEGLIGENCE in creating risk of physical injury to P.

Causation and Damages: D’s conduct generally must cause physical symptoms from the distress (minority dropped this req)

Bystander recovery: P bystander must
(1) be closely related to injured person,
(2) be present at the scene, and
(3) observe or perceive the injury.