Negligent Infliction of Emotional Distress Claims (NIED)

NIED claims are a unique type of personal injury claim where the plaintiff demands compensation for emotional distress, even when no physical injury occurred.

Negligent Infliction of Emotional Distress (NEID) is, in essence, a personal injury claim that arises when one person (the defendant) acts so carelessly that he or she must compensate the injured person (the plaintiff) for his or her mental or emotional injury. In this article, how an NEID claim works is discussed in detail. For cases where the defendant intentionally commited the act, see Intentional Infliction of Emotional Distress (IIED) Claims.

Essential Elements of Negligent Infliction of Emotional Distress

In an NEID claim, the defendant's negligence (carelessness) is said to have caused the plaintiff mental or emotional harm.

Emotional harm damages are a part of most personal injury claims. What makes NEID unique is that a plaintiff can sue for NEID without any other personal injury claims being a part of the lawsuit. This differs from typical emotional distress damages that are part of a larger personal injury claim.

Because an NEID claim could potentially turn into a claim simply for "hurt feelings," there are two other requirements to a successful NEID claim, in addition to a defendant's negligent conduct.

Every state follows one of three different version of the first requirement (explored in more detail in the sections below):

  1. the defendant’s conduct must have caused some kind of physical contact or impact (however minor), or
  2. the plaintiff must have been in the "zone of danger" of the defendant’s negligent act, or
  3. it must have been foreseeable that the defendant’s negligent conduct would have caused the plaintiff emotional harm.

Additionally, most states have some variation of a second requirement: that the plaintiff’s emotional harm be so severe that it causes physical symptoms or physical manifestations of some kind.

The Impact Rule

The "impact rule" is only followed in a few states. This rule simply requires that something, anything, contacted or impacted the plaintiff as a result of the defendant’s negligent act -- even a pebble or the percussive effect of an explosion will fulfill the requirement. Note that the defendant’s act must still be negligent, it is only the impact that can be minor.

Zone of Danger Rule

The "zone of danger" rule is followed in a fair number of states. This rule requires that the plaintiff was close enough to the defendant’s negligent act that the plaintiff was at immediate risk of physical harm. Like the impact rule, the zone of danger rule limits an NIED claim to emotional harm based almost exclusively on fear of injury.

Foreseeability Rule

The "foreseeability" rule is followed by a majority of states. Foreseeability is a requirement in all standard negligence cases: in essence, a defendant must have been able to reasonably predict that his or her actions could result in the negative consequences experienced by the plaintiff. This rule does not create the same kind of artificial restrictions on NEID claims that the impact and zone of danger rules do. The essential difference is that there is no requirement that the defendant’s negligent conduct involve some form or risk of physical harm.

Emotional Harm Creating Physical Symptoms

In addition to following either the impact, zone of danger or foreseeability rule, most states also require that the plaintiff’s emotional harm was so severe that it created physical symptoms.

Depending on the state, physical symptoms might include loss of appetite or sleeplessness. In other words, the "physical" symptoms need not be severe, but simply observable and objective.

This requirement theoretically prevents a plaintiff from claiming to have experienced severe emotional harm based solely on his or her description of an unverifiable, internal and subjective experience. Some states, however, require the physical symptoms of an NEID claim to be more severe than sleeplessness, loss of appetite or anxiety. In addition to the physical symptoms themselves, some states also require that the symptoms show up immediately after the defendant’s negligent act. Finally, a few states, including California, no longer require physical symptoms in NEID cases.

"Bystander" Cases Involving Close Family Members

A "bystander case" is where a close family member witnesses or arrives immediately on the scene of an accident where another family member was injured or killed by the defendant's negligence.

The difference between a bystander case and a typical NEID case is that the plaintiff in a bystander case experienced mental or emotional anguish as a result of seeing or believing a close family member would suffer grave injury, as opposed to being the direct victim of the defendant's negligent act.

For example, where a wife witnesses a husband's severe injury as a result of the defendant's reckless driving (let's say she was in a following car), or she arrives to witness the immediate aftermath, that would likely create an NEID claim in most states. A close friend of the husband witnessing the same accident, however, could not sue for NEID. Note that even in states that typically apply the impact or zone of danger rule, the court will apply the foreseeability rule to a "bystander" case.

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