Negligent infliction of emotional distress
Encyclopedia
The tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 of negligent infliction of emotional distress (NIED) is a controversial cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

, which is available in nearly all U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...

 to use reasonable care to avoid causing emotion
Emotion
Emotion is a complex psychophysiological experience of an individual's state of mind as interacting with biochemical and environmental influences. In humans, emotion fundamentally involves "physiological arousal, expressive behaviors, and conscious experience." Emotion is associated with mood,...

al distress
Stress (medicine)
Stress is a term in psychology and biology, borrowed from physics and engineering and first used in the biological context in the 1930s, which has in more recent decades become commonly used in popular parlance...

 to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...

 for monetary damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...

 to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...

 in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

.

History

NIED began to develop in the late nineteenth century, but only in a very limited form, in the sense that plaintiffs could recover for consequential emotional distress as a component of damages when a defendant negligently inflicted physical harm upon them. By 1908, most industrial U.S. states had adopted the "physical impact" form of NIED. However, NIED started developing into its more mature and more controversial form in the mid-20th century, as the new machines of the Second Industrial Revolution
Second Industrial Revolution
The Second Industrial Revolution, also known as the Technological Revolution, was a phase of the larger Industrial Revolution corresponding to the latter half of the 19th century until World War I...

 flooded the legal system with all kinds of previously unimaginable complex factual scenarios. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v. Legg
Dillon v. Legg
Dillon v. Legg, 68 Cal. 2d 728 , was a case decided by the Supreme Court of California that established the tort of negligent infliction of emotional distress...

, the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...

 was the first court to allow recovery for emotional distress alone even in the absence of any physical injury to the plaintiff in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed. A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.

The next step after Dillon was to make optional the element of another person (so that the injury could be to anything where it would be reasonably foreseeable that such injury would cause some person emotional distress). The first such case was Rodrigues v. State, in which the Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional distress as a result of negligently caused flood damage to their home. This is generally considered to be the true birth of NIED as a separate tort.

Twelve years after Dillon, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

 expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis
De minimis
De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...

(unnecessary medications and medical tests) if the outcome was foreseeable (the breakup of the plaintiffs' marriage as a result of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease
Sexually transmitted disease
Sexually transmitted disease , also known as a sexually transmitted infection or venereal disease , is an illness that has a significant probability of transmission between humans by means of human sexual behavior, including vaginal intercourse, oral sex, and anal sex...

).

In 1994, the U.S. Supreme Court for the first time recognized NIED as part of federal common law, by holding that railroad workers could pursue NIED claims against their employers under the Federal Employers Liability Act
Federal Employers Liability Act
The Federal Employers Liability Act , 45 U.S.C. § 51 et seq. , is a United States federal law that protects and compensates railroaders injured on the job.-Background:...

. The Court recognized only the pre-Dillon form of NIED, though, in that the plaintiff had to be within a zone of danger to recover in the absence of physical injury.

In 1999, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...

 took NIED even further by expressly holding that "damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury."

Criticisms of the tort

The tort is generally disfavored by most states because it appears to have no definable parameters and the potential claims that can be made under the theory are wide open. It is difficult to define what situations would give rise to such a claim, and what situations would not. Because of this substantial uncertainty, most legal theorists find the theory to be unworkable in practice.

A corollary of this critique is that the tort runs the risk (in the bystander NIED context) of overcompensating plaintiffs for distress which would have occurred anyway regardless of the cause of death of the decedent. In a landmark decision of the Supreme Court of California which severely limited the availability of bystander NIED, Associate Justice David Eagleson
David Eagleson
David N. Eagleson served as an Associate Justice of the Supreme Court of California from 1987 to 1991. He practiced law in Long Beach, California for 20 years...

 wrote in Thing v. La Chusa
Thing v. La Chusa
Thing v. La Chusa, 48 Cal. 3d 644 , was a case decided by the Supreme Court of California that limited the scope of the tort of negligent infliction of emotional distress...

, 48 Cal. 3d 644 (1989):
An additional criticism of the tort is that it leads to abuse of insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...

 liability coverage. Most insurance liability policies provide for coverage of negligently inflicted injuries
Injury
-By cause:*Traumatic injury, a body wound or shock produced by sudden physical injury, as from violence or accident*Other injuries from external physical causes, such as radiation injury, burn injury or frostbite*Injury from infection...

 but exclude coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many theorists perceive that the victim will tend to recast the claim as being one for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

 in order to fall within the coverage of the insurance policy.

The Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

 case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

 secretly videotape
Videotape
A videotape is a recording of images and sounds on to magnetic tape as opposed to film stock or random access digital media. Videotapes are also used for storing scientific or medical data, such as the data produced by an electrocardiogram...

d himself engaging in sexual
Human sexuality
Human sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...

 activities with the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress.

On appeal, the Texas Supreme Court
Texas Supreme Court
The Supreme Court of Texas is the court of last resort for non-criminal matters in the state of Texas. A different court, the Texas Court of Criminal Appeals, is the court of last resort for criminal matters.The Court is composed of a Chief Justice and eight Associate Justices...

 observed that the facts did not support a claim of negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain insurance coverage. The Court then went on to hold that Texas did not recognize a claim for negligent infliction of emotional distress and remanded the case to the trial court for consideration of a claim for intentional infliction of emotional distress.

Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow recovery for emotional distress where such distress:
  1. is inflicted intention
    Intention
    Intention is an agent's specific purpose in performing an action or series of actions, the end or goal that is aimed at. Outcomes that are unanticipated or unforeseen are known as unintended consequences....

    ally (i.e., intentional infliction of emotional distress)
  2. is directly associated with a physical injury negligently inflicted upon a victim (e.g., emotional distress resulting from a loss of limb or disfigurement of the face)
  3. is caused by defamation and libel
    Slander and libel
    Defamation—also called calumny, vilification, traducement, slander , and libel —is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image...

    ;
  4. stems from witnessing a gruesome accident as a bystander
  5. is the product of some misconduct universally recognized as causing emotional distress such as mishandling a loved one’s corpse or failing to deliver a death notice in a timely manner.

External links

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