Negligent Infliction of Emotional Distress Claims (NIED)

In an NIED claim, the plaintiff asks for compensation for emotional distress, sometimes when no physical injury occurred.

Updated by , J.D.

"Negligent infliction of emotional distress" (NIED) is a personal injury law concept that arises when one person (the defendant) acts so carelessly that he or she must compensate the injured person (the plaintiff) for resulting mental or emotional injury.

In this article, we'll discuss how an NIED claim works. (For cases where the defendant acted to intentionally cause psychological harm to the claimant, see our article on Intentional Infliction of Emotional Distress (IIED) claims.)

Essential Elements of Negligent Infliction of Emotional Distress

In a personal injury claim in which NIED is alleged, the defendant's negligence (carelessness) is said to have caused the plaintiff mental or emotional harm.

Emotional or psychological harm is a part of many personal injury claims ("pain and suffering" damages, for example). What makes NIED unique is that a plaintiff can sometimes file a personal injury lawsuit for NIED without any other larger allegation being a part of the case. This differs from typical emotional distress damages that are almost always part of a larger personal injury claim.

Because an NIED claim could potentially turn into a claim simply for "hurt feelings," there are usually two other requirements for a successful NIED claim, on top of the defendant's negligent conduct. Most states follow one of three different versions 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 NIED 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" rules, most states also require that the plaintiff's emotional harm be 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 NIED 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. Note that the law in this area is evolving, and a few states no longer require physical symptoms in NIED 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 NIED case is that the plaintiff in a bystander case experienced mental or emotional anguish as a result of seeing a close family member 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 NIED claim in most states. A close friend of the husband witnessing the same accident, however, could not sue for NIED. Note that even in states that typically follow the impact or zone of danger rule, the court will apply the foreseeability rule to a "bystander" case.

Getting Legal Help With a NIED Claim

When the impact of someone else's negligence is significant enough to cause emotional distress and other psychological harm (especially on top of physical injuries), it probably makes sense to discuss your situation with a lawyer.

Proving the legitimacy and extent of emotional distress can be a challenge, so it's crucial to have an experienced legal professional on your side to make sure you put your strongest case together. Learn more about how a personal injury lawyer can help and get tips on finding the right lawyer for you and your case.

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