Negligent Infliction of Emotional Distress

People may suffer emotional distress that manifests itself as mental suffering, mental anguish, nervous shock, fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. Historically, claims for damages for emotional distress caused by a defendant’s negligence were usually denied. However, almost every state now recognizes the right to recover for negligent infliction of emotional distress.

Conduct causing emotional distress

A defendant may be liable for negligent infliction of emotional distress if he unintentionally causes emotional distress to a plaintiff when he should have realized that his conduct involved an unreasonable risk of causing the distress that might result in illness or bodily harm.

The defendant’s negligence must be the proximate cause of the plaintiff’s distress, which means that the resulting distress naturally flowed from the negligence. However, such results must be reasonably foreseeable so as to establish a duty upon the defendant not to bring about the harm.

Tests to determine if a plaintiff may recover

The test followed by most courts to determine if a defendant is liable for a plaintiff’s emotional distress is one of foreseeability. Under this test, a plaintiff is allowed to recover for emotional distress if he was directly and foreseeably threatened by a defendant’s actions.

Some courts follow the zone of danger test, under which a plaintiff who does not sustain any physical impact may still recover for emotional distress if he was within the zone of physical harm. The plaintiff must have been within such a close range to the accident that there was a high risk of physical injury. Those who were outside the zone of danger may not recover.

A few jurisdictions follow the impact test, which allows a plaintiff to recover damages for emotional distress if he establishes that the defendant’s negligence resulted in any direct physical impact to the plaintiff. The plaintiff need not show that the impact even caused the emotional distress.

Requirement of physical injury

In most states, a plaintiff must suffer a physical injury in order to succeed on a claim for negligent infliction of emotional distress because there was no intent by the defendant to harm the plaintiff. A physical injury is an observable, physical manifestation of the emotional distress that may include nervousness, headaches, nausea, vomiting, indigestion, loss of appetite, loss of sleep, fatigue, loss of weight, blackouts, numbness, chest pains, stomach pains, memory loss, nervous disorder, and crying spells.

Some courts require that the physical injury be immediate.

In addition to bodily harm, some courts allow recovery of damages for emotional distress arising from the destruction of property and animals.

Some examples of cases in which a plaintiff may recover damages for negligent infliction of emotional distress include those involving the mishandling of a corpse, unwholesome food served to a plaintiff, defective products that caused distress to a plaintiff, and distress caused to a pregnant plaintiff. The general rule is that damages for negligent infliction of emotional distress are not recoverable in breach of contract cases unless there is a special relationship between the parties (e.g., common carrier and a passenger, innkeeper and a guest, or public utility and a customer).

Bystander Recovery

A bystander may recover for emotional distress negligently inflicted by a defendant arising from his conduct towards a third party. Depending on which test is followed in determining whether a plaintiff may recover, some courts require that a bystander actually witness the event, while others require that the bystander just have an experiential perception of it (e.g., by observing the suffering immediately after the accident).

Recovery is usually limited to those who are close relatives of the victim, but a blood relationship in not required. The relationship of friendship is usually not enough, however.