Negligent infliction of emotional distress
Encyclopedia : N : NE : NEG : Negligent infliction of emotional distress
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| Tort law II |
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| Part of the common law series |
| Negligent torts |
| Negligence · Negligent hiring |
| Negligent entrustment |
| Negligent infliction of emotional distress |
| Doctrines affecting liability |
| Duty of care · Standard of care |
| Proximate cause · Res ipsa loquitur |
| Calculus of negligence · Eggshell skull |
| Vicarious liability · Attractive nuisance doctrine>Attractive nuisance |
| Rescue doctrine · Duty to rescue |
| Comparative responsibility |
| Duties owed to visitors to property |
| Trespassers · Licensees · Invitees |
| Defenses to negligence |
| Contributory negligence |
| Comparative negligence |
| Assumption of risk · Intervening cause |
| Strict liability |
| Ultrahazardous activity |
| Products liability |
| Nuisance |
| Other areas of the common law |
| Contract law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
History
The tort was embraced by certain legal theorists and jurisdictions in the latter part of the twentieth century. California was the first jurisdiction to allow recovery for emotional distress alone — even in the absence of any physical injury — 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. See Dillon v. Legg, 68 Cal. 2d 728 (1968) [link].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.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 Texas case 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 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:
- is inflicted intentionally (i.e., intentional infliction of emotional distress)
- 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)
- is caused by defamation and libel;
- stems from witnessing a gruesome accident as a bystander
- 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.
External links
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