When Do I Have a Case if I Witnessed a Traumatizing Event?

negligent infliction of emotional distress, witnessing a traumatizing event

Negligent infliction of emotional distress involves witnessing the injury or death of a loved one

Watching a loved one suffer a catastrophic injury or death can be devastating, and courts have come to recognize this as its own tort: negligent infliction of emotional distress (NIED). Requirements vary by state and some require physical symptoms, but most allow for recovery of damages after witnessing a tragedy involving a close family member. Read more here:

One of the most famous cases of negligent infliction of emotional distress is Dillon v. Legg, a 1968 case that extended these contentious cases from physical to emotional injuries.

This is an interesting case that is still brought up in law schools today. The defendant struck and killed a child with his car, and the plaintiffs – the child’s mother and sister – sued the defendant for wrongful death as well as negligent infliction of emotional distress. They were both near the child when the accident occurred and watched the entire incident happen.

The trial court found that because the plaintiffs were not arguably in the “zone of danger”, they couldn’t recover for NIED. This was reversed on appeal, making it the first case in which physical proximity was not required.

The appeals court found that emotional distress, on its own, could be established as an independent count for which damages could be recovered. 

The elements of an NIED claim

An NIED claim is when someone’s actions are so thoughtless or without care that they cause mental or emotional injury to another person.

This can arise in tandem with a physical personal injury claim, but in order to stand alone as an NIED claim, it has to meet the following elements (most states have some variation of the following):

1. The defendant’s actions must have caused some kind of physical contact, or
2. The plaintiff must have been in the “zone of danger,” or
3. The defendant must have foreseen that his negligent conduct would cause the plaintiff emotional harm.

Zone of Danger

Many states follow this rule, which states that the plaintiff was in close enough proximity to the negligent act that he or she was in risk of physical harm. This limits an NIED claim to fear of injury.

The Impact Rule

Only a few states still follow this rule, which states that if even the smallest thing impacted the plaintiff as a result of the defendant’s negligent act – think of a tiny rock that was flung from the defendant’s fireworks explosion – then the requirement will have been fulfilled.

The Foreseeability Rule

This is followed by most states. A defendant must reasonably foresee that his actions could result in the consequences experienced by the plaintiff. Sometimes, no matter how badly you want to find for the plaintiff and it just “feels right,” some things just aren’t foreseeable.

Most states also require that the plaintiff’s emotional harm manifest physical symptoms of some manner.

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Examples of this could be things one might consider small or even inconsequential, like sleeplessness or temporary loss of appetite. The symptoms need not be catastrophic or severe; they simply must be quantifiable. While some states require a showing of severe symptoms immediately after the negligent act, others no longer even require illustration.

“Bystander” cases

Bystander cases involve close family members witnessing accidents in which another family member is injured or killed by a defendant’s negligent action.

The key difference here is that Family Member A is caused emotional distress purely by watching what happens to Family Member B because of the defendant’s negligence; nothing happens physically to Family Member A.

This would apply to a husband and wife or brother and sister; this would not be the case for a close family friend, though, no matter how many sleepovers or Sunday dinners he or she had attended.

Enjuris tip: For NIED to apply, you must be a close family member.

If you believe that you have experienced a situation like any of the above, consider speaking with a lawyer. Negligent infliction of emotional distress claims can be difficult to prove at the best of times, and they generally need to be proven in tandem with other personal injury claims.

If you haven’t hired an attorney yet, look through the Enjuris law firm directory.

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