NIED: Negligent Infliction of Emotional Distress

Someone may witness or otherwise receive exposure to a severely traumatic event. For example, a bystander may be at the scene of a violent car accident. Such a person may be able to make a claim for negligent infliction of emotional distress (NIED).

This controversial tort (civil wrong) is available to plaintiffs in most states. States differ quite a bit on how the cause of action (claim) is applied in personal injury lawsuits. Unlike intentional infliction of emotional distress (IIED), in which intent is the central consideration, NIED assumes the defendant has a legal duty to use reasonable care with regard to the plaintiff.

The scope of this legal duty—and how a plaintiff's standing is determined—is widely interpreted by courts. This article discusses:

• Elements of a negligent infliction of emotional distress claim
• Differences among state laws
• Remedies (recovery available after suing in court)
• Other important aspects of the NIED tort in personal injury claims

Negligent Infliction of Emotional Distress: Overview

The tort of NIED may apply to situations where someone suffers some mental or emotional harm. The harm, such as shock or trauma, must result from the negligence of another. This does not apply when the distress is a direct result of a physical injury.

Many NIED claims arise from the traumatic experience of witnessing a family member or loved one's serious injury or death. For example, a woman arrives at the scene of a drunk driving accident and witnesses the final breaths of her dying spouse. In addition to a wrongful death claim, she may have an NIED claim against the drunk driver.

Elements of an NIED Claim

The elements required in all states for this tort include the negligence of the defendant and the emotional injury to the plaintiff. Depending on the state, the facts of an NIED claim must adhere to either the "impact" rule, the "zone of danger" rule, or the "foreseeability" rule in order for it to be valid. Here's how the NIED personal injury case rules vary across states:

• Impact Rule: The defendant's negligent act had at least a minor impact on the plaintiff, causing injury. In other words, the defendant's conduct must be a direct cause of the plaintiff's harm. Very few states follow this rule.

• Zone of Danger Rule: The plaintiff was in a specific "zone of danger" and at risk of physical harm, causing fear. Note that actual physical contact with the plaintiff need not occur.

• Foreseeability Rule: The defendant must have been able to reasonably foresee that their actions would have caused the emotional distress. This is the rule followed by most states.

NIED Claims and State Laws

State courts have very different interpretations of negligent infliction of emotional distress. Most jurisdictions limit the use of this tort. Some states address NIED through statute (civil code). But this is typically only to provide immunity to certain people, such as police officers or firefighters. The rules and parameters for what constitutes a valid NIED claim are shaped by state courts.

One of the most important precedents was established with the California Supreme Court's Dillon v. Legg (1968) ruling. It was the first to award damages for NIED as a stand-alone tort. The Court, in this case, ruled in favor of a plaintiff who suffered emotional distress. The plaintiff suffered harm from witnessing a relative's death. In a persuasive context, it has been cited numerous times in other states' courts since.

The following are examples of state NIED laws, as established through the courts:

• Kansas: The plaintiff's injury must fall within the definition of "physical injury" in order to qualify as a valid NIED claim. Also, the injury must appear within a short span of time after the alleged emotional disturbance.

• California: Negligent conduct must cause the plaintiff to reasonably fear for their safety. The plaintiff may sue for the resulting shock and nervous distress, even in the absence of actual impact.

• Texas: The plaintiff may recover for NIED only if they witnessed an accident at close proximity. The victim must have been a close relative (such as a parent, sibling, or child).

• Illinois: The plaintiff must establish that they suffered physical injury or illness as a result of emotional distress. The distress must be experienced directly or as a bystander within a zone of physical danger.

Note that some states require physical manifestation of a plaintiff's injuries. Mental anguish alone would not suffice in such states. This does not mean that the plaintiff must suffer physical impact at the same time as the victim of an accident. But a subsequent heart attack would be an appropriate physical symptom.

Remedies for NIED Claims

As with the underlying case law that guides negligent infliction of emotional distress claims, states differ on how damages are awarded in such claims. Generally, payment of damages for NIED claims should be proportional to the seriousness of the emotional injury. If physical injury accompanies the emotional trauma, an award of damages is more likely. Plaintiffs can use medical records to substantiate their injuries for the court.

Still, courts often have a difficult time quantifying emotional harm in such cases. This may be balanced with the need to prevent similar acts in the future. In other words, courts may use damages as a deterrent against outrageous conduct. Still, NIED claims typically are compensated at a lower amount than personal or property injury claims. Examples of available remedies include:

• Economic damages, such as costs for medical treatment
• Emotional distress damages, such as cognitive changes or loss of enjoyment of life
• Punitive damages to punish the egregiousness of the defendant's actions

Get Professional Legal Help With Your NIED Claim

You may have a valid claim for negligent infliction of emotional distress and not even know it. It all depends on how your state's courts interpret tort law. NIED claims are not easy to prove, so you may want to contact a personal injury lawyer if you believe the negligent acts of another caused you severe emotional distress.

Personal injury law is complicated enough, and insurance companies can make things more difficult. Professional legal advice can tear away the confusion and help you recover money. Get started today by finding a local personal injury attorney experienced in NIED claims.