The tort cause of action, “negligent infliction of emotional distress,” while available in just about all jurisdictions in the United States, has several restraints and limitations in bringing about this particular cause of action in many jurisdictions. Negligent infliction of emotional distress, as opposed to “intentional infliction of emotional distress,” requires different premises in order to establish a cause of action for money damages. With negligent infliction, the plaintiff does not have to prove “intent” to inflict emotional distress. The mere accidental infliction of emotional distress would be sufficient.
Emotional distress damages can be part and parcel to an underlying personal injury claim, however, it does not necessarily have to be, but can stand on its own. There are three requirements in order for a plaintiff to sustain an emotional distress claim:
- The defendant, by his or her actions, must have caused a physical contact with plaintiff;
- The plaintiff must have been in the “zone of danger.” By “zone of danger,” it is meant that the defendant by his or her actions, has created an area within which the plaintiff is placed in actual physical peril. Some jurisdictions may require that a bystander witnessing an injury to the plaintiff can only recover damages for negligent infliction of emotional distress if he or she was also in the “zone of danger,” and is a member of plaintiff’s family.
- The risk of creating emotional harm to the plaintiff must have been foreseeable.
Rules Regarding Claims for Negligent Infliction of Emotional Distress
Aside from the “zone of danger” rule, some jurisdictions require the “impact” rule which means that something connected with defendant’s action must have impacted with the plaintiff. The “foreseeability” rule requires that a defendant must have been able to reasonably predict that his actions would cause the injury to the plaintiff that it did, and that the emotional harm must have created physical symptoms in the plaintiff that can be demonstrated with specificity, such as depression, sleepiness, or loss of appetite, etc.
The “bystander” negligent infliction of emotional distress rule involves the witnessing of injury or death to a victim of defendant’s actions by a close family member. Plaintiff bystander is not directly affected by defendant’s actions, but indirectly as a result of having witnessed the incident.
Negligent infliction of emotional distress is a cause of action available to plaintiffs and bystander family members alike. This cause of action may piggy back off an underlying negligent cause of action such as negligent criminal homicide, auto accidents, etc., but negligent infliction of emotional distress may also stand on its own. Understanding your rights and remedies in this matter will require the expertise of an experienced personal injury attorney.
The law concerning negligence and intentional torts are pretty much standard in most jurisdictions. However, negligent infliction of emotional distress may have different twists and turns depending on your jurisdiction. Therefore, if you need an attorney to represent you with respect to a negligent or any intentional tort causes of action, it is critical that you seek the advice of counsel that will provide you with the personal attention your require. You will need the assistance of an experienced personal injury law attorney. Please contact us today, by phone at 1-877-363-7942, or take advantage of our online case evaluation form to schedule your initial case review.
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