Negligent Infliction of Emotional Distress is a specific type of emotional distress legal cause of action. It occurs when one person does something to cause severe emotional distress to another person. It is similar to Intentional Infliction of Emotional Distress, except that it occurs unintentionally or by accident. To recover from a NIED claim there are certain elements that have to be present:
- Foreseeability: The defendant must have been able to reasonably foresee that his or her activities would have caused the emotional distress.
- Zone of Danger: The plaintiff must be in a "zone of danger" and at risk of physical harm, causing fear.
- Impact Rule: The defendants actions caused damages to plaintiff
In several states, a physical injury must actually cause the emotional distress. In a minority of states, no physical injury is required if the emotional distress was caused by negligence. But what is required in the case of assault?
How Can I Prove Negligent Infliction of Emotional Distress?
To prove negligent infliction of emotional distress, the plaintiff need not prove that the defendant acted purposefully or willfully in creating the emotional distress. Instead, most jurisdictions require that the following elements be satisfied:
- The defendant engaged in conduct that was negligent or was a willful violation of statutory standards;
- The plaintiff suffered severe emotional distress;
- The defendant’s conduct was the direct cause of the emotional distress;
- The action was foreseeable by defendant; and
- The plaintiff was in a “zone of danger”.
What is Considered Severe Emotional Distress?
“Severe emotional distress” is narrowly defined in the context a Negligent Infliction of Emotional Distress claim. Basically, the plaintiff must show that some sort of substantial, verifiable physical injury accompanies their emotional distress.
In other words, the plaintiff cannot recover for distress that is solely psychological or imagined. Examples of physical injury or symptoms that would constitute severe emotional distress would be:
- Elevated blood pressure;
- Nausea, vomiting, or intestinal discomfort;
- Nervous system disorders; and/or
- Overall physical illness.
Thus, the more that the emotional distress is accompanied by physical symptoms, the greater the chances of recover are for the plaintiff. If the emotional distress is not accompanied by any physical symptoms at all, then the plaintiff will likely have difficulties in proving their claim.
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Can a Bystander Recover for Negligent Infliction of Emotional Distress?
Sometimes a bystander may suffer emotional distress after witnessing a victim being assault. Recovery for bystanders is extremely limited in assault cases. In order to recover, the bystander must prove:
- The defendant acted negligently in committing the assault;
- The defendant’s assault was the cause of injury to the victim;
- The bystander was the victim’s parent, spouse, or child (Immediate family member is required);
- The bystander was present at the scene of the assault during its occurrence;
- The bystander was aware that the assault caused an injury to the victim; and
- The bystander suffered serious emotional distress as a result of the above.
What is the “Zone of Danger”?
If the plaintiff wants to recover in a NIED claim, the plaintiff bystander must have been in the “zone of danger” of the attack, meaning that they themselves must also have been exposed to the risk of injury from the assault.
Their emotional distress must also be accompanied by physical symptoms. If any of these elements is lacking, then the bystander will not be permitted to recover. For example, if the person was not related to the victim, or if they merely heard about the assault but did not witness it, they cannot recover for emotional distress.
What Damages Can I Recover for Negligent Infliction of Emotional Distress Claim?
You may recover general damages and specific damages in a NIED claim. General damages compensate for the injury itself, the most commonly known type is damages for pain and suffering. Other types of general damages are awarded for ongoing disability, or disfigurement. The amount of general damages will depend on:
- Severity of the injuries;
- Pain and suffering;
- Your future medical prognosis; and
- Any pre-existing injuries.
Specific damages, also called special damages, compensate for measurable monetary loss resulting from the injury. Specific damages cover both past and future lost wages, medical bills, and other consequential costs. The amount will depend on:
- Amount of medical bills;
- How the injuries have affected your ability to work; and
- How the injuries have affected your lifestyle.
Do I Need a Lawyer?
Claims for negligent infliction of emotional distress are serious and should be addressed immediately. The advice and representation of an attorney can be of great help in such claims. An experienced personal injury lawyer can advise you on your course of action whether you are the person injured, a bystander, or are being accused of inflicting emotional distress.