Friday, September 13, 2013

The Top Five: Negligent Infliction of Emotional Distress

The top five things to know about negligent infliction of emotional distress:

(1): The duty of care is breached when defendant creates a foreseeable risk of physical injury to plaintiff either by causing a threat of physical impact that leads to emotional distress or by directly causing severe emotional distress that by itself is likely to result in physical symptoms. Both will suffice.

(2): If liability is predicated on threat of physical injury, plaintiff must prove that he was in the zone of danger when the threat occurred. This means that it was reasonable for plaintiff to believe that he was in fact threatened with physical injury.

(3): Even a bystander who witnesses another being physically injured can recover if the bystander is in the zone of danger when witnessing the injury. The bystander-plaintiff must prove that he and the person injured are closely related, that he (the bystander) was present when the injury occurred, and that he (the bystander) observed or perceived the injury.

(4): To recover for this tort, physical symptoms are usually required (unlike in intentional infliction of emotional distress). But even though emotional distress alone will not suffice, if that distress causes, for example, a shock to the nervous system, that alone will be sufficient.

(5): There are a few examples when physical symptoms in addition to emotional distress is not required. These include when plaintiff receives an erroneous report of a relative's death, and when the corpse of the plaintiff's relative is mishandled.

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