NIIED Flashcards
NIEED
Only alleging emotional distress- no physical injury
-parasitic damage, so an underlying tort is required
- show duty, breach, cause in fact, prox. cause, emotional distress
Historically- what was the rule?
Original impact rule:
Negligence –> Physical Harm –> Emotional Harm = Plaintiff Recovers
Negligence –> Emotional Harm –> Physical Harm = Plaintiff Does Not Recover
Direct victim
Negligent risk of physical harm toward plaintiff
o Impact rule: physical impact, even if no physical injury was required (generally disappeared)
o Physical impact rule (modified version of impact rule- minority): some objective manifestation after the shock/freight
o Zone of danger: plaintiff was in the zone of physical impact and must actually have feared physical impact at the time or near the accident
Indirect victim (bystander liabiltiy)
o Family relationships are legally relevant facts – generally close relationships- Blood family members and spouses
• Plaintiff was within the zone of danger and feared for safety of another
• E.g. case with the daughter’s friend tubing
• Plaintiff could have recovered if he had a direct familial relationship and had been in the zone of danger (he met neither requirement)
• Restatement 3d § 48:
• An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily injury.
Exceptions to needing physical harm for NIIED
1) Negligently delivering a message telling someone a loved one has died
2) Negligently mishandling the remains of a loved one
3) Burgess court – sedated mom with injured child, the doctor has a relationship with the mom even though she couldn’t perceive it (a relationship exists between d and p which the d’s negligence has a great potential to directly cause emotional distress)
