Negligent infliction of emotional distress

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The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress 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.

Contents

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 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 , the Supreme Court of California 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. [1] 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. [2]

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, [3] 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 expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis (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). [4]

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. [5] 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 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." [6]

Criticism

It is generally disfavored by most states because it appears to have no definable parameters and because so many potential claims can be made under it. The situations that would give rise to such a claim are difficult to define. 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 wrote in Thing v. La Chusa , 48 Cal. 3d 644 (1989):

No policy supports extension of the right to recover for NIED to a larger class of plaintiffs. Emotional distress is an intangible condition experienced by most persons, even absent negligence, at some time during their lives. Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones. These reactions occur regardless of the cause of the loved one's illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the 'human condition.' The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. . . . The overwhelming majority of 'emotional distress' which we endure, therefore, is not compensable. [7]

An additional criticism of the tort is that it leads to abuse of liability insurance coverage. Most liability insurance policies provide for coverage of negligently inflicted injuries 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 in order to fall within the coverage of the insurance policy.

The Texas case of Boyles v. Kerr , 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. 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 Supreme Court of Texas 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 intentionally (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;
  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.

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Intentional infliction of emotional distress is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

<span class="mw-page-title-main">Personal injury</span>

Personal injury is a legal term for an injury to the body, mind, or emotions, as opposed to an injury to property. In common law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability. Different jurisdictions describe the damages in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

In English law, a nervous shock is a psychiatric / mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. Often it is a psychiatric disorder triggered by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading", it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law.

<i>Wilkinson v Downton</i>

Wilkinson v Downton[1897] EWHC 1 (QB), [1897] 2 QB 57 is an English tort law decision in which the Common Law first recognised the tort of intentional infliction of mental shock. At the time, this was not covered under the law of negligence.

A dignitary tort is type of intentional tort where the cause of action is being subjected to certain kinds of indignities. Historically, this category of torts was often covered by the writ of trespass vi et armis.

<i>Letang v Cooper</i>

Letang v Cooper[1964] EWCA Civ 5 is an English Court of Appeal judgment, by which it was decided that negligently caused personal injury cannot be recovered under the trespass to the person, but the tort of negligence must be tried instead.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

<i>Landeros v. Flood</i> Court case in California

Landeros v. Flood was a 1976 court case in the state of California involving child abuse and alleged medical malpractice.

Dillon v. Legg, 68 Cal. 2d 728 (1968), was a case decided by the Supreme Court of California that established the tort of negligent infliction of emotional distress. To date, it is the most persuasive decision of the most persuasive state supreme court in the United States during the latter half of the 20th century: Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision in the period from 1940 to 2005. It was also favorably cited by the House of Lords in an important case on nervous shock, McLoughlin v O'Brian [1983].

Thing v. La Chusa, 48 Cal. 3d 644 (1989), was a case decided by the Supreme Court of California that limited the scope of the tort of negligent infliction of emotional distress. The majority opinion was authored by Associate Justice David Eagleson, and it is regarded as his single most famous opinion and representative of his conservative judicial philosophy.

Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980), was a case decided by the Supreme Court of California that first recognized that a "direct victim" of negligence can recover damages for emotional distress without an accompanying physical injury.

Krouse v. Graham, 19 Cal.3d 59 (1977), was a case decided by the Supreme Court of California ruling that a lack of visual perception of an accident did not necessarily preclude recovery for negligent infliction of emotional distress.

<span class="mw-page-title-main">Tort law in India</span> Aspect of Indian law

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.

<i>Venning v Chin</i> Australian court case

Venning v Chin (1974) 10 SASR 299 is a Supreme Court of South Australia full court judgment, by which it was decided that in trespass cases, the onus lies on the defendant to disprove fault. However, for injuries caused in highway accidents, the onus is on the plaintiff to prove fault on the part of the defendant.

References

  1. ↑ See Dillon v. Legg , 68 Cal. 2d 728 (1968).
  2. ↑ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683, 694 (2007).
  3. ↑ 52 Haw. 156, 472 P.2d 509 (1970).
  4. ↑ See Molien v. Kaiser Foundation Hospitals , 27 Cal. 3d 916 (1980).
  5. ↑ Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
  6. ↑ Roes v. FHP, Inc., 91 Haw. 470, 985 P.2d 661 (1999).
  7. ↑ Thing v. La Chusa, 48 Cal. 3d 644, 666-667 (1989).
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