633 W 5th Street #2890
Los Angeles, CA 90071
(213) 596-9642.
Date Modified: September 9, 2023
Negligent infliction of emotional distress is also known as parasitic damage. There are many ways in which it can arise. Generally, in California, one can recover for negligent infliction of emotional distress in different types of fact patterns. Including a funeral home that wrongfully disposes of a body or does something to a family member’s body that it shouldn’t have done, buries the wrong body, or incinerates a body they weren’t supposed to incinerate. It could be caused in a situation where a parent or family member sees one of their children being hurt by the negligence of another or perceives that injury, not necessarily seeing it.
Video Transcript - What Is ‘Negligent Infliction of Emotional Distress’ under Tort Law?
"0:00 What is negligent infliction of 0:02 emotional distress under tort law? 0:04 Negligent infliction of emotional 0:06 distress is also known as parasitic 0:09 damages. There are many ways in which it 0:12 can arise. But generally, in California, 0:16 one can recover for negligent infliction 0:18 of emotional distress in different types 0:22 of fact patterns, including a funeral 0:24 home who wrongfully disposes of a body, 0:26 or does something to a body of a family 0:29 member that it shouldn’t have done, or 0:31 buries the wrong body, or incinerates a 0:34 body they weren’t supposed to incinerate. 0:35 Or it could be caused in a situation 0:39 where a parent or family member sees one 0:43 of their children being hurt by the 0:48 negligence of another, or perceives that 0:50 injury not necessarily seeing it. So 0:54 necessarily, under this theory, a blind 0:57 person can recover a for negligent 1:00 infliction of emotional distress caused 1:02 by a tort feasor to one of their loved 1:04 ones 1:04 if that blind person perceived the 1:07 injury causing event while it was 1:10 occurring, it’s a sort of negligent 1:12 damage that you can tack on to other 1:15 negligence claims that you might have 1:17 called parasitic damages." [music]"
So necessarily, under this theory, a blind person can recover for negligent infliction of emotional distress caused by a tortfeasor to one of their loved ones if that blind person perceived the injury-causing event while it was occurring. It’s a sort of negligent damage that you can tack onto other negligence claims that you might have called parasitic damages.
One of the most confusing areas of law revolves around claims pertaining to severe emotional injury only, commonly known as negligent infliction of emotional distress. Let’s discuss this controversial cause of action with Ehline Law and our personal injury attorneys.
What Is Negligent Infliction of Emotional Distress under Tort Law?
Injury claims involving negligent infliction of emotional distress arise when the defendant’s wrongdoing results in the plaintiff’s emotional or psychological harm. Emotional injuries are part of a personal injury claim for which the plaintiff can recover compensation, including pain and suffering damages.
Unlike emotional distress damages that are always part of a personal injury claim, negligent infliction of emotional distress claims is unique as it does not involve physical injury. A person experiences severe emotional distress from another’s misconduct or negligence, which can turn into a claim to recover damages.
Essential Elements of Negligent Infliction of Emotional Distress
The main element required in all states for anyone to file a negligent infliction of emotional distress claim is negligence and the plaintiff’s emotional distress-related injury.
However, every state adheres to one of the three rules pertaining to these types of claims, and these include:
Impact rule
Zone of danger rule
Foreseeability rule.
The “Impact” Rule
Only a few states follow this rule, which requires the defendant’s negligence to have at least a minor impact on the plaintiff or contact with the plaintiff.
For example, a pebble from an accident that touches the plaintiff or the effect of the exposition witnessed by the plaintiff is sufficient to fulfill the impact rule requirement.
“Zone of Danger” Rule
Some states follow the zone of danger rule that requires the plaintiff to be close enough to the defendant’s negligent conduct, putting the plaintiff at immediate risk of physical harm. The negligent infliction of emotional distress claim under the zone of danger rule limits the claim to emotional harm arising from fear of injury.
“Foreseeability” Rule
Most states follow the foreseeability rule that requires the defendant to reasonably predict that their actions could cause harm to the plaintiff.
Under the foreseeability rule, there are no restrictions on the negligent infliction of emotional distress claims like with impact or the zone of danger rule. The difference between the foreseeability rule and the other two rules is that there is no requirement for risk of physical harm arising from the defendant’s conduct.
Every state follows one of the three rules mentioned, but besides the rule, the states require a severe level of emotional harm that leads to physical symptoms. The physical symptoms may vary from one state to another but generally include appetite loss or sleeplessness.
Some states require severe physical symptoms, while others require the symptoms to appear immediately after the incident. A few states do not require a physical manifestation of such injury.
“Bystander” Cases Involving Close Family Members
When a person suffers severe injuries or dies due to someone else’s negligence, the surviving family member arriving at the accident scene and witnessing their injured or deceased loved one is known as the “bystander case.”
Although a bystander case and negligent infliction of emotional distress may seem similar, the two are entirely different. In the bystander case, the plaintiff experiences emotional trauma after seeing the state of their loved one following the accident. In contrast, in the negligent infliction of emotional distress case, the plaintiff directly witnesses the defendant’s negligent act.
For example, a wife walks outside of her house and sees another vehicle crash into her husband’s car, resulting in severe injuries to him. In such situations, the wife may be able to file a negligent infliction of emotional distress claim against the negligent driver. However, the husband’s best friend, seeing the same accident, cannot sue for negligent infliction of emotional distress.
The state court creates the rules and perimeter for what constitutes a negligent infliction of emotional distress claim. The interpretation of these types of claims varies across state courts. For example, in California, a person can sue another if they fear for their safety due to the nervous distress arising from the other party’s negligence, even if they were not present at the time of the actual impact.
While in Illinois, the plaintiff must establish that they suffered a physical injury from their emotional distress experienced from the negligent act of the defendant within the zone of danger, either directly or as a bystander.
What Are the Remedies for Negligent Infliction of Emotional Distress Claims?
The damages awarded in negligent infliction of emotional distress claims differ depending on the state. Generally, the compensation for such claims should be proportional to the seriousness of the emotional injuries.
However, courts struggle to quantify emotional harm in negligent infliction of emotional distress cases. Typically, the compensation awarded is lower than one would receive in personal injury claims.
What Is Intentional Infliction of Emotional Distress?
In some cases, there may be no threat of physical injuries, but these types of cases may be deeply offensive or psychologically damaging to a person. For example, a practical joker pulls a cruel prank on someone stating that their family member suffered severe injuries in an accident. Under the law, the prankster would be liable for causing emotional distress and psychological trauma to the person they pulled the prank on, even though there is no physical injury arising from their joke.
To have a valid intentional infliction of emotional distress claim, the plaintiff must prove that the defendant intentionally or recklessly engaged in outrageous conduct, resulting in emotional damage to them. Deciding whether or not the defendant’s actions were outrageous is subjective, which means that the courts must decide what is outrageous and what is not case by case.
Case Example: Wilkinson v. Downton (1897)
In Wilkinson v. Downton, a public house customer, a defendant, pulled a prank on the plaintiff, telling her that her husband suffered a severe accident and lost both legs. The plaintiff started vomiting due to the shock to her nervous system and had to receive medical attention for weeks. The plaintiff, Mrs. Wilkinson, sued Mr. Downtown for serious emotional distress, and the judge ruled in favor of the plaintiff. The court noted that the injury was intentional and the claim was valid, awarding the plaintiff £100.
Criticisms of Negligent Infliction of Emotional Distress
The most significant criticism of the tort is that there are no clearly defined parameters, making the theory unworkable in practice.
Another criticism is the abuse of liability insurance coverage covering negligence injuries and not intentionally afflicted injuries. According to theorists, intentionally injured victims recast their claims under negligence to fall within the insurance coverage.
Schedule a Free Consultation with Ehline Law
If you suffered injuries in an accident that was not your fault, whether it is emotional or physical injury, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation.
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.
