Third Party Claim for Negligent Infliction of Emotional Distress (NIED)


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As a personal injury attorney in San Francisco, CA, I am constantly in contact with individuals who were involved in an accident of some sort.  It may have been a motorcycle accident or a pedestrian accident.  There are also situations where a third party or a “bystander” to the accident may also have a claim.

This article will discuss the elements and requirements in order to plead and prove a claim for negligent infliction of emotional distress as outlined by California law.

ELEMENTS FOR A NIED CLAIM

The elements of a claim of NIED are: 

1.  The defendant engaged in negligent conduct or a willful violation of a statutory standard;

2.  The plaintiff suffered serious emotional distress, and;

3.  The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.

EMOTIONAL DISTRESS DEFINED

The term "emotional distress" means mental distress, mental suffering or mental anguish.  It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.  Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances.  It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.

FAILING TO USE REASONABLE CARE TO AVOID EMOTIONAL INJURY TO A THIRD PARTY

The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual.  If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual.  Therefore, an accidental infliction, if negligent, is sufficient to support a cause of action.

FORESEEABILITY AND THE DUTY OF CARE OWED TO A BYSTANDER

In Dillion v. Legg, the California Supreme Court relied on foreseeability in order to establish whether or not a negligent defendant owed a duty of care to a bystander.  The Court urged a case-by-case analysis of several elements to determine if foreseeability would create a duty to a bystander:

  1. Whether the plaintiff was near the scene of the accident;
  2. Whether the plaintiff suffered an emotional shock from contemporaneously observing the accident, and;
  3. Whether the plaintiff is closely related to the victim.

Using these criteria, the Court determined that it was foreseeable that the negligent operation of an automobile could cause emotional distress to a mother witnessing the injury of her child in an accident.

NO REQUIRMENT FOR PHYSICAL INJURY TO PLAINTIFF

The Supreme Court of California, in Dillion v. Legg, allows recovery for emotional distress alone – even in the absence of any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed.  Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.  Twelve years after Dillon, California expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis (unnecessary medications and medical tests) if the outcome was foreseeable.

If you believe that you may have a claim, please contact a personal injury attorney in your city and state.

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