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Negligent Infliction of Emotional Distress Explained

Posted by Steve Vondran | Oct 03, 2015 | 0 Comments

Negligent Infliction of Emotional Distress Explained (Direct Victim Case).  Essential Factual Elements a Plaintiff must prove.


This blog discusses the tort or negligent infliction of emotional distress (“NIED”).  If you need legal help, please fill out the contact form below.  NIED is NOT an individual tort, but basically is just a form of negligence.

What is negligence?  California Jury instructions CACI 401 (Basic standard of care a person owes another)

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

You must decide how a reasonably careful person would have acted in [name of plaintiff/defendant]'s situation.

Sample jury instructions – California CACI 1620 negligent infliction of emotional distress

Here are the jury instructions for California.  A Plaintiff always bears the “burden of proof” to prove EACH ELEMENT below.

[Name of plaintiff] claims that [name of defendant]'s conduct caused [him/her] to suffer serious emotional distress. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was negligent (judge decides if a duty is owed – don't forget negligence per se);

2. That [name of plaintiff] suffered serious emotional distress (see types of mental distress); and

3. That [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s serious emotional distress.

What constitutes emotional distress?

Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.

What is “serious emotional distress?

Serious” emotional distress exists “if an ordinary reasonable person would be unable to cope with it.” See Molien v. Kaiser Found. Hosps. (1980) 27 C3d 916, 927-928, 167 CR 831, 837-838.

California only allows for the “direct victim” tort in three instances:

The California Supreme Court has allowed plaintiffs to bring negligent infliction of emotional distress actions as “direct victims” in only three types of factual situations:

(1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]);

(2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923 [167 Cal.Rptr. 831, 616 P.2d 813]); and

(3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).

According to some California courts:

“Duty is found where the plaintiff is a ‘direct victim,' in that the emotional distress damages result from a duty owed the plaintiff ‘that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” See McMahon v. Craig (2009) 176 Cal.App.4th 222, 230 [97 Cal.Rptr.3d 555].

No physical manifestations are required

In a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury: “We agree that the unqualified requirement of physical injury is no longer justifiable.” See Molien, supra, 27 Cal.3d at p. 928.

Miscellaneous legal authority

The California Supreme Court has stated:

“Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations].” See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464 [303 P.2d 1041].)

Standard of care

“The formulation of the standard of care is a question of law for the court. Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether a party's conduct has conformed to the standard.” See Ramirez v. Plough, Inc (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167], internal citations omitted.)

The proper conduct of a reasonable person in a particular situation may become settled by judicial decision or may be established by statute or administrative regulation. (Ramirez, supra, 6 Cal.4th at p. 547.) (See CACI Nos. 418 to 421 on negligence per se.)

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

The Restatement Second of Torts, section 283, provides:

“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” (ex. would have got consent, would have included disclaimers that AR still works the turf).

Employer-Employee cases

Employer's conduct in negotiating settlements and then laying off plaintiffs shortly thereafter “was arguably negligent” and could reasonably be expected to result in emotional distress. [Miller v. Fairchild Industries, Inc. (9th Cir. 1986) 797 F2d 727, 737-738 (applying Calif. law).  Negligence can be found in the doing of an act, as well as in the failure to do an act. (Rest.2d Torts, § 284.).

If you have any questions about the Negligent Infliction of Emotional Distress Tort in California, contact one of our personal injury litigation lawyers.

We have offices in California and Arizona and serve clients in both states including San Diego, Newport Beach (Orange County), Los Angeles (Beverly hills), and San Francisco (servicing Oakland, San Jose, Bay area, Silicon Valley, Tiburon, Sausalito and Belvedere).

 We can be reached at (877) 276-5084 or to have one of our lawyers contact you fill out the form below.  We will contact you normally within the hour.  Some cases may be taken on a full or partial contingency fee basis, meaning we do not get paid anything until we win your case.  Here is a list of the different types of mental damages the Courts may recognize in CA and AZ.

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Steve Vondran

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