Negligent Infliction of Emotional Distress Claims in California
In California, the negligent infliction of emotional distress (NIED) cause of action allows plaintiffs who have suffered emotional damages as a result of the defendant’s negligent conduct to recover.
Importantly, the NIED cause of action is available not only to plaintiffs who were directly victimized by the defendant’s negligence, but is also available to third party bystanders – those who were not directly, physically harmed by the defendant’s conduct. Bystanders may seek damages for the emotional distress they indirectly suffered as a result of having to witness the accident.
The fundamental basis underlying the negligent infliction of emotional distress cause of action is that people have a duty to exercise reasonable care so as not to cause emotional suffering and distress to others – but in California, this duty is not a general duty to all other persons. It only applies to qualified persons where such a duty can be assumed to exist. If a defendant violates this duty, then, as with other negligence actions, they may be liable for damages by virtue of such violation.
Suppose that two brothers are going for a walk around their neighborhood. Defendant is speeding in his automobile and loses control as a result of his negligent conduct, consequently slamming into one of the brothers and severely injuring him. In this example, the uninjured brother may sue the defendant for damages on the basis of negligent infliction of emotional distress.
Crucial to the NIED cause of action is the concept of emotional distress. What exactly is emotional distress, then?
Emotional distress encompasses mental anguish and suffering, including anxiety, grief, fear, shock, and humiliation, among a variety of other negative emotions. In the state of California, it is not necessary that physical symptoms arise as a consequence of emotional distress (such as significant weight loss as a result of anxiety). Emotional distress itself is enough to give rise to an NIED cause of action. Of course, the experience of emotional distress in a legitimate NIED case must be reasonable given the facts of the case. Fortunately, the courts do not necessarily expect people to be emotionally unaffected by serious and shocking events.
The Direct Victim Theory
Under the direct victim theory, the plaintiff must demonstrate that: 1) the defendant acted negligently; 2) the plaintiff suffered emotional distress; and 3) the defendant’s negligence caused plaintiff’s emotional distress.
The direct victim theory is only applicable in a limited number of situations, however: mishandling of corpses, medical diagnostic negligence, and the breach of a pre-existing relationship duty (see Burgess v. Superior Court (1992)). The latter is the most typical example under direct victim theory.
As the court in Wooden v. Raveling (1998) wrote, “Direct victim cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” Importantly, the court will decide whether a duty was owed directly to the plaintiff as a victim – and this determination is, to some extent, subjective.
The Bystander Theory
Under the bystander theory, the bystander-plaintiff must demonstrate that: 1) the plaintiff was closely related to the injured person; 2) the plaintiff was located at the scene of the accident and was aware of the occurrence of the injury as it was happening; and 3) the plaintiff suffered emotional distress to a degree greater than that which a disinterested witness would suffer.
Importantly, the plaintiff-bystander need not have suffered physical injury to sue for NIED (see Dillon v. Legg (1968)).
The crucial element here is that the plaintiff-bystander must be closely related to the injury victim. The close relation requirement is quite strict, however. As the court in Thing v. La Chusa (1989) wrote: “Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” The court in Elden v. Sheldon (1988) further illustrated the rigidity of this requirement, stating that unmarried cohabitants would not qualify.
The second crucial element is that of contemporaneously perceiving the occurrence of the injury. Even a few moments later will not count. As the court in Ra v. Superior Court (2007), wrote: “Someone who hears an accident but does not then know it is causing injury to a relative does not have a viable bystander claim for NIED, even if the missing knowledge is acquired moments later.”
Foreseeability Under the Bystander Theory
Importantly, whether a defendant owes a duty of care to a bystander depends on whether it was reasonably foreseeable that the negligent conduct of the defendant could cause emotional distress to the plaintiff-bystander upon witnessing the injury. The Dillon court instructed that later courts would have to analyze cases on their own merits, depending on the unique circumstances of each case, in order to determine whether there was reasonable foreseeability and thus whether the defendant owed a duty of care to the bystander. The court went further and listed out several factors that influence the foreseeability of emotional distress to the bystander.
These factors include: the proximity of the plaintiff in relation to the accident itself, if the plaintiff suffered emotional anguish and shock as a result of witnessing the injury, and the closeness of the relation between the plaintiff and the injury victim.
It is worth noting that while the proximity of the plaintiff-bystander plays a role in influencing foreseeability, the plaintiff-bystander need not be standing within the zone of danger of the accident – in other words, the plaintiff-bystander need not himself have been at risk of injury – in order to successfully sue the defendant under the bystander theory of NIED.
Minimal Injuries to the Primary Victim
California has always been on the leading edge of NIED law and policy, expanding the availability of the NIED cause of action to ever greater numbers and types of plaintiffs.
Currently, under California law, a plaintiff-bystander can successfully sue the defendant for damages under NIED even if the direct victim was not significantly injured.
Suppose that a mother is standing with her son on the sidewalk. A bicyclist is riding haphazardly on the sidewalk and loses control, smashing into the son. The son is forced to go to the hospital and go through a number of tests, including MRIs and blood testing. The doctors may even have prescribed some medication for the son. Ultimately, however, it is found that the son suffered minimal, if any, injuries as a result of the collision. In such circumstances, the mother would still be able to sue under the bystander theory of NIED so long as she legitimately suffered emotional distress in response to the accident. Her perception and reaction – if reasonable – is what matters.