Negligent Infliction of Emotional Distress

Under the traditional view, there was no duty regarding the negligent infliction of emotional distress.

However, what the plaintiff could do was try to prove that he had suffered actual physical harm and that, as a result of the physical harm, he had also suffered emotional distress. If the plaintiff could show this, he could tack on the damages for emotional distress to the damage for his physical injuries and collect in that manner.

Today, most jurisdictions consider the threat of actual physical injury enough for recovery. That is to say, so long as the plaintiff is within the zone of danger established by the defendant’s actions and he suffers emotional distress as a result of the defendant’s actions, the plaintiff will be able to recover for the emotional distress, even if the plaintiff suffers no physical injury. See Batalla v. State, 10 N.Y.2d 237 (1961). Here's an example:

1. Rush invites Howard to his house. While he is there, Howard uses Rush's swimming pool. Howard does not know that Rush has added a large quantity of chlorine earlier in the day. As a result of this Howard suffers burns on his body and acquires a lifelong fear of water. Even under the traditional view, Howard can sue Rush for emotional distress because he can tack those damages on to a suit for the physical injuries he has suffered.
2. Rush invites Howard to his house. While he is there, Howard uses Rush's swimming pool. As soon as Howard jumps in, Rush says to him "Have a look at this new pet I've just acquired", and points to a baby shark swimming in the pool. As a result of this , Howard is so frightened by the shark that he suffers emotional distress and acquires a lifelong fear of water. Under the traditional view, Howard cannot sue Rush because he has not suffered any physical injury. Under the modern view, however, since Howard was in the zone of danger, he can sue even without suffering any physical injury.

The next issue is whether or not the plaintiff can recover for emotional distress suffered as a result of an injury or the threat of an injury to a third person. For example, can a parent recover for emotional distress suffered as a result of seeing his child injured or threatened with injury?

The older view of the law held that the plaintiff had to have actually been in the zone of danger in order to recover for emotional distress. See Bovsun v. Sunperi, 61 N.Y.2d 219 (1984). So, for example:

If a car veered off the road and struck a child, the parent could recover for emotional distress if he had been standing next to the child at the time of the accident. Standing next to the child would have put him in the zone of danger and thus, would have put the parent himself at risk. However, if the parent were standing on the other side of the street, there would be no recovery for emotional distress because he would have been outside the zone of danger.

This older rule effectively prevented plaintiffs from recovering for emotional distress in cases where they had not been personally at risk themselves. Today, a larger number of jurisdictions permit the plaintiff to recover for emotional distress where the defendant’s negligence injures or threatens a member of the plaintiff’s family but does not injure or threaten plaintiff himself.

See Dillon v. Legg, 68 Cal. 2d 728 (1968).

However, the plaintiff must meet three requirements in order to recover:

1. The plaintiff and the victim must be closely related.
2. The plaintiff must be at the scene of the accident and must be aware that the victim is suffering from injuries.
3. The plaintiff must suffer emotional distress beyond that likely to be suffered by an unrelated bystander who sees the accident.

See Thing v. LaChusa, 48 Cal. 3d 644 (1989).

Some jurisdictions will allow recovery even if the plaintiff is not at the scene of the accident so long as he arrives immediately afterward. For example:

A mother hears an explosion and immediately goes outside to see that her son has been injured by a blasting cap negligently left at a construction site. Recovery will be allowed even though the mother was not at the scene of the accident when the accident occurred.

Please note that the plaintiff’s rights in such cases are derivative. That is to say, the plaintiff’s rights are dependent on the cause of action of the third party. If the third party can recover against the defendant for his injuries, the plaintiff can recover for emotional distress. If the third person cannot recover for his injuries, the plaintiff will not be able to recover either.

Most jurisdictions deny recovery for emotional distress if the distress is caused by the defendant’s damaging plaintiff’s property. Further, most jurisdictions deny recovery for emotional distress caused by the death of a pet.

Finally, the general rule for recovery for emotional distress dictates that the emotional distress must be manifested by a tangible physical injury (for example, a miscarriage, nervous breakdown or some other kind of physical sign) to the plaintiff. See Reilly v. United States, 547 A.2d 894 (R.I. 1988). The rationale behind the law is that proof of a demonstrable physical injury will prevent a fraudulent case of emotional distress from being successful.

The exception to this rule involves the erroneous reporting of a relative’s death or mishandling of the corpse of a deceased relative. That is to say, where someone receives a false report of a relative’s death or where a person receives word that the corpse of a deceased relative has been mishandled by a funeral home or morgue, the courts will allow recovery for emotional distress without proof of a tangible physical injury. The rationale here is that, because these cases involve such an expanded likelihood of genuine mental distress, the concern that the plaintiff may be bringing a fraudulent case is eliminated.

However, there is a growing minority view that allows recovery for severe emotional distress even without the manifestation of a tangible physical injury. However, if there is no manifestation of a tangible physical injury, this minority will only grant recovery for the emotional distress of the direct victim. The requirement that emotional distress be manifested by a tangible physical injury will remain in bystander (third party) cases.