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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Monday, May 10, 2010

14 –Negligent Infliction of Emotional Distress

14 –Negligent Infliction of Emotional Distress

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

As you will recall, I briefly covered Intentional Infliction of Emotional Distress (IIED) in the section on intentional torts. Now we return to that subject to compare it to Negligent Infliction of emotional distress (NIED).

The primary differences between NIED and IIED are as follows:

IIED requires: 1) intentional conduct, 2) extreme and outrageous conduct, and 3) severe emotional distress.

NIED requires: 1) Negligent conduct – all negligence elements PLUS, 2) Physical impact or physical manifestations of distress, and 3) Bystanders can recover for NIED.

So look for some sort of negligent conduct by applying all of the rules for negligence. Then look for some sort of physical impact or some sort of manifestations of distress (i.e. heart attack). Generally nightmares will not be sufficient as “manifestations,” but if accompanied with sweating or vomiting and the like, will suffice.

What about fright or shock from the risks of physical harm? Another way/theory under which emotional distress is recoverable other than IIED or NIED is where harm is shown to be as "parasitic" to any other tort where other physical injury occurred to the plaintiff. Here one can recover for injury that is parasitic (attaches to) negligent surgery, but let’s look at the Mitchell case and what is called the impact rule.

The Mitchell Rule or the “impact” rule is a limit to parasitic damages. Under Mitchell:

     1. There is no recovery for fright alone and
    2. There can be no recovery for the consequences of fright, including the physical consequences like miscarriage and
     3. There must be impact or initial injury.

Most courts no longer follow the impact rule, but impact in the sense of actual harm is important because under the parasitic damages rule, it permits the plaintiff to recover emotional harm damages without meeting the other special rules that have been added to restrict the emotional harm claim. In other words, if the impact counts as a tort, the plaintiff recovers for the physical harm and also (under the parasitic damages rule) for emotional harm. So absence of impact no longer rules out the plaintiff's claim, but the presence of impact may assist it.

Physical manifestation (harm resulting from emotional distress). Although the impact rule has been overruled, many courts continue to bar the emotional harm claim unless the plaintiff can demonstrate physical injury or at least some physical manifestation of emotional injury. Maybe the following will help:

If:

     1. Tort causes Actual/Physical Harm, then Emotional harm is recoverable as parasitic.
     2. Tort causes Emotional Harm, which produces actual/physical injury (like a heart attack), the parasitic damages would not originally work (because impact did not occur), but the physical manifestation rule, recognized in most courts today, would permit recovery.
     3. Tort causes emotional harm, but without physical harm, then the physical manifestation rule does not permit recovery.

Note: As far as I have read, at least 21 states have dropped the physical harm or physical manifestation rules.

Now, let’s look at the topic of “Emotional Harm or Loss Resulting from Injury to another – commonly called “Bystander Cases.” Where bystanders suffer emotional distress because of being very near an accident or because of actually witnessing an accident:

     1. Inside the Zone of Danger – Grube*: The Grube case established what is called the “Zone of Danger” test. Here, plaintiff must be in the “zone of danger” and fear for his own safety. This rule does not change merely because the plaintiff himself suffered an impact, where that impact causes none of the emotional harm claimed, since plaintiff, in this circumstance, is not really a bystander.
     2. Outside the Zone of Danger – Dillon*: The Dillon case allowed recovery under the following:
          a. Plaintiff was nearby,
          b. Plaintiff had a direct, sensory and contemporary perception of the accident and
          c. Plaintiff was closely related to the victim.

Note that the rule in Dillon was overturned in the Thing* case.

     3. Thing*: (Bright-Line/Hard and Fast Rules from Dillon) The close relative who is present.
          a. Plaintiff must be a close personal relation to the victim (by blood or marriage. Relatives residing in the same home) and
          b. Plaintiff was present at the scene of the injury-producing event and aware of it at the time, and
          c. There is resulting emotional distress.

* Grube v. Union Pacific RR. The plaintiff was the engineer of the train that struck an automobile. Plaintiff suffered some physical impact, and plaintiff also suffered emotional distress. He was denied recovery because he did not fear for his own personal safety – his fear/shock/fright was for the victims in the trapped car, and he had insufficient physical injury for parasitic recovery. Under California law, it would have made a difference if Grube had known the persons in the trapped car – if he had recognized their faces as close personal relations, as his train was bearing down on them, for instance. In California, pursuant to Dillon and Thing v. La Chusa , the engineer would recover as a bystander because he was a close relation to the victims, he was present and aware and he suffered emotional distress as a result.

Professor Doug Holden
© 2010. Douglas S. Holden. All rights reserved.

4 comments:

  1. thank you for some clarification regarding parasitic damages

    ReplyDelete
    Replies
    1. You are most welcome. Sorry this reply is so late.

      dh

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  2. Thank You for the clarification. I just found your blog at the top of search for parasitic recovery. I am a Concord First Year Law student, and it helps me to get the viewpoints of other law sources. I am very happy to have found your blog.

    ReplyDelete
  3. I am glad it helped. Let me know if you need anything else. You can reach me at professordougholden@gmail.com.

    ReplyDelete