Wednesday, March 31, 2010


Negligent infliction of emotional distress

The tort of negligent infliction of emotional distress (NIED) is a controversial legal theory and is not accepted in many United States jurisdictions. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is  sufficient to support a claim.  




The tort was embraced by certain legal theorists and jurisdictions in the latter part of the twentieth century. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v. Legg, the Supreme Court of California was the first court to allow recovery for emotional distress alone – even in the absence of any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed.[1] A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.[2]    The next step after Dillon was to make optional the element of another person (so that the injury could be to anything where it would be reasonably foreseeable that such injury would cause some person emotional distress). The first such case was Rodrigues v. State,[3] in which the Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional distress as a result of negligently caused flood damage to their home. This is generally considered to be the true birth of NIED as a separate tort.  Twelve years after DillonCalifornia expanded NIED again, by holding that a relative could recover even where the underlying physical injury was de minimis (unnecessary medications and medical tests) if the outcome was foreseeable (the breakup of the plaintiffs' marriage as a result of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease).[4]NNIn 1999, Hawaii took NIED even further by expressly holding that "damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury."[5]

[edit]Criticisms of the tort

The tort is generally disfavored by most states because it appears to have no definable parameters and the potential claims that can be made under the theory are wide open. It is difficult to define what situations would give rise to such a claim, and what situations would not. Due to this substantial uncertainty, most legal theorists find the theory to be unworkable in practice.
A corollary of this critique is that the tort runs the risk (in the bystander NIED context) of overcompensating plaintiffs for distress which would have occurred anyway regardless of the cause of death of the decedent. In 1989, in a landmark decision of the Supreme Court of California which severely limited the availability of bystander NIED, Associate Justice David Eagleson wrote:
No policy supports extension of the right to recover for NIED to a larger class of plaintiffs. Emotional distress is an intangible condition experienced by most persons, even absent negligence, at some time during their lives. Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones. These reactions occur regardless of the cause of the loved one's illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the 'human condition.' The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. . . . The overwhelming majority of 'emotional distress' which we endure, therefore, is not compensable.[6]
An additional criticism of the tort is that it leads to abuse of insurance liability coverage. Most insurance liability policies provide for coverage of negligently inflicted injuries but exclude coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many theorists perceive that the victim will tend to recast the claim as being one for negligence in order to fall within the coverage of the insurance policy. The Texascase of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress. On appeal, the Texas Supreme Court observed that the facts did not support a claim of negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain insurance coverage. The Court then went on to hold that Texas did not recognize a claim for negligent infliction of emotional distress and remanded the case to the trial court for consideration of a claim for intentional infliction of emotional distress.
Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow recovery for emotional distress where such distress:
  1. is inflicted intentionally (i.e., intentional infliction of emotional distress)
  2. is directly associated with a physical injury negligently inflicted upon a victim (e.g., emotional distress resulting from a loss of limb or disfigurement of the face)
  3. is caused by defamation and libel;
  4. stems from witnessing a gruesome accident as a bystander
  5. is the product of some misconduct universally recognized as causing emotional distress such as mishandling a loved one’s corpse or failing to deliver a death notice in a timely manner.


  1. ^ See Dillon v. Legg68 Cal. 2d 728 (1968).
  2. ^ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940-200541 U.C. Davis L. Rev. 683, 708(2007).
  3. ^ 52 Haw. 156, 472 P.2d 509 (1970).
  4. ^ See Molien v. Kaiser Foundation Hospitals27 Cal. 3d 916 (1980).
  5. ^ Roes v. FHP, Inc.91 Haw. 470, 985 P.2d 661 (1999).
  6. ^ Thing v. La Chusa48 Cal. 3d 644, 666-667 (1989).

[edit]External links

Tuesday, March 30, 2010


  1. Wells Fargo Home Mortgage - Justia Blawg Search

    Wells Fargo Class Action Defense Cases-Mevorah v. Wells Fargo: Ninth Circuit Reverses Certification Of Labor Law Class Action Holding District Court Erred ... › Blawg Search - Cached
  2. Wells Fargo Bank N.A. - Justia Blawg Search

    On November 2, 2009, a class action was filed in the Central District of California againstWells Fargo Bank and Bank of New York Mellon on behalf of ... - Cached
  3. Toldeo v. Wells Fargo Home Mortgage :: Justia Dockets & Filings

    Mar 30, 2010 ... Missouri Eastern District Court - Torts - Property - Other Fraud - Toldeo v.Wells Fargo Home Mortgage - Justia Federal Dockets and Filings. - 52 minutes ago
  4. MAYS v. WELLS FARGO FINANCIAL CARDS :: Justia Dockets & Filings

    Mar 29, 2010 ... District Of Columbia District Court - Other Statutes - Other Statutory Actions - MAYS v. WELLS FARGO FINANCIAL CARDS - Justia Federal ...
  5. Alfred Powers; Herbert Wong; Alfred Overley; Christine Overley ...

    Justia US Court of Appeals Cases and Opinions - 439 F.3d 1043 - Alfred Powers; Herbert Wong; ... Wells Fargo Bank Na; Wells Fargo & Company; Mary E. Osaki; ... Justia | Supreme Court Center | US Laws | Blawgs.FM | ... claim alleging securities fraud, presented in a class action, was barred by 18 ... › Cases › US Court of Appeals › F.3d › 439 - Cached
  6. The UCL Practitioner: Reminder: CAOC/SFTLA/BASF class action ...

    Mar 2, 2008 ... Please come to the 2nd Annual Class Action Seminar: Class Actions from the Plaintiff's ... Wells Fargo Home Mortgage, Inc. » .... Blawg Republic · Blawg Search (Justia) · · Law Blog Directory ... - Cached
  7. The UCL Practitioner: New Ninth Circuit decision on the UCL's ...

    The Patel decision is In Wells Fargo Home Mortg. ... Pending Supreme Court UCL and Class Action Cases (updated 02/23/10) · Leading UCL Cases ... -Cached - Similar
  8. D.J - Blawgs.FM Podcasts

    Justia Blawgs.FM Podcast Search Search Results: 189 results for " D.J .... Investors at four high-end resorts have filed a $24 billion class-action lawsuit ... - Cached
  9. Library – Brunette Law Blogs

    C09-0036-MJP (WD WA, February 13, 2009) First Amended Class Action Complaint ...Countrywide & Wells Fargo Opposition to Motion for Class Certification ... - Cached
  10. The Complex Litigator - The Complex Litigator Home - It is ...

    Oregon Class Action Blog · ... Justia Blawg Search. Commentary and Criticism .... Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316. ... -Cached


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