Negligent Infliction of Emotional Distress

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In torts law, the causing of severe emotional distress in another person through conduct that is negligent, but without reckless or an intent to cause such distress.  The emotional distress includes, inter alia, anguish, suffering, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation and shame.  Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with said distress.

Elements of Negligent Infliction of Emotional Distress (“NIED”)

Direct Victim Theory of Liability:

  • To prove NIED under the direct victim theory, plaintiff must prove all of the following:
    • That defendant was negligent;
    • That plaintiff suffered serious emotional distress; and
    • That defendant’s negligence was a substantial factor in causing plaintiff’s serious emotional distress.
[Courts generally have permitted recovery of damages under “direct victim” theory only in three types of situations:  (1) where defendant negligently mishandled a corpse (Christensen v. Superior Court, 54 Cal. 3d 868 (1991)); (2) where defendant negligently misdiagnosed a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 (1980)); or (3) where defendant negligently breached a duty arising out of a preexisting relationship between plaintiff and defendant (Burgess v. Superior Court, 2 Cal. 4th 1064 (1992).]

Bystander Theory of Liability: 

  • To prove negligent infliction of emotional distress under the bystander theory of liability, a plaintiff must prove all of the following:
    • That defendant negligently caused injury to, or death of, a victim;
    • That when the foregoing event took place, plaintiff was present at the scene;
    • That plaintiff was then aware that the event was causing injury to, or death of, the victim;
    • That plaintiff suffered serious emotional distress; and
    • That defendant’s conduct was a substantial factor in causing plaintiff’s serious emotional distress.
[Thing v. La Chusa, 48 Cal. 3d 644, 647 (1989) (“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the tiem it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”); Fortman v. Forvaltningsbolaget Insulan AB, 212 Cal. App. 4th 830, 843-44 (2013) (rejecting plaintiff’s “attempt to expand bystander recovery to hold a product manufacturer strictly liable for emotional distress when the plaintiff observes injuries sustained by a close relative arising from an unobservable product failure.”); Ra v. Superior Court, 154 Cal. App. 4th 142, 149 (2007) (“Although a plaintiff may establish presence at the scene through nonvisual sensory perception, someone who hears an accident but does not then know it is causing injury to a relative does not have a viable bystander claim for negligent infliction of emotional distress, even if the missing knowledge is acquired moments later.”).]

Not An Independent Cause Of Action

The doctrine of negligent infliction of emotional distress (“NIED”) is not a separate cause of action.  Instead, the NIED doctrine simply permits certain persons to recover damages for emotional distress only on a negligence cause of action even though those persons were not otherwise injured or harmed.  See, e.g., Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 928 (1980)

[Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856, 875-76 (1989) (“As an introductory note, we observe that plaintiffs . . . framed both negligence and negligent infliction of emotional distress causes of action.  To be precise, however, ‘the tort with which we are concerned is negligence.  Negligent infliction of emotional distress is not an independent tort[.]”).]

 

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