The tort of negligent infliction of emotional distress (NIED) is a controversial legal theory and is not accepted in many United States jurisdictions. 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. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a claim.
History
The tort was embraced by certain legal theorists and jurisdictions in the latter part of the twentieth century. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v. Legg, the Supreme Court of California was the first court to allow 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.[1] A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.[2]
The next step after Dillon was to make optional the element of another person (so that the injury could be to anything where it would be reasonably foreseeable that such injury would cause some person emotional distress). The first such case was Rodrigues v. State,[3] in which the Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional distress as a result of negligently caused flood damage to their home. This is generally considered to be the true birth of NIED as a separate tort.
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 (the breakup of the plaintiffs' marriage as a result of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease).[4]
Criticisms of the tort
The tort is generally disfavored by most states because it appears to have no definable parameters and the potential claims that can be made under the theory are wide open. It is difficult to define what situations would give rise to such a claim, and what situations would not. Due to this substantial uncertainty, most legal theorists find the theory to be unworkable in practice.
An additional criticism of the tort is that it leads to abuse of insurance liability coverage. Most insurance liability policies provide for coverage of negligently inflicted injuries but exclude coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many theorists perceive that the victim will tend to recast the claim as being one for negligence in order to fall within the coverage of the insurance policy. The Texas case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress. On appeal, the Texas Supreme Court observed that the facts did not support a claim of negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain insurance coverage. The Court then went on to hold that Texas did not recognize a claim for negligent infliction of emotional distress and remanded the case to the trial court for consideration of a claim for intentional infliction of emotional distress.
Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow recovery for emotional distress where such distress:
- is inflicted intentionally (i.e., intentional infliction of emotional distress)
- is directly associated with a physical injury negligently inflicted upon a victim (e.g., emotional distress resulting from a loss of limb or disfigurement of the face)
- is caused by defamation and libel;
- stems from witnessing a gruesome accident as a bystander
- is the product of some misconduct universally recognized as causing emotional distress such as mishandling a loved one’s corpse or failing to deliver a death notice in a timely manner.
References
- ^ See Dillon v. Legg, 68 Cal. 2d 728 (1968).
- ^ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683, 708(2007).
- ^ 52 Haw. 156, 472 P.2d 509 (1970).
- ^ See Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).