Negligent Infliction of Emotional Distress

Most people are familiar with the fact that those who are physically injured because of another’s negligence or wrongdoing can recover compensation for their injuries. But California permits those who are emotionally harmed due to another’s negligence to recover damages in some situations.

To recover for the negligent infliction of emotional distress, a plaintiff must prove that:

• The defendant owed the plaintiff a duty;
• The defendant negligently breached that duty; and
• The plaintiff suffered severe emotional distress as a result of the negligence.

Only if a duty exists does a plaintiff have the legal right to be free from emotional distress negligently caused by another. Recovery is possible under two theories in California: the direct victim theory and the bystander theory.

Under the direct victim theory, a person may recover for the negligent infliction of emotional distress when conduct directed at the victim caused him or her to suffer serious emotional distress. The plaintiff must show that:

• The defendant was negligent;
• The plaintiff suffered serious emotional distress; and
• The defendant’s negligence was a substantial factor in causing the distress.

Emotional distress may include suffering, anguish, fright, nervousness, grief, worry and anxiety, shock, or humiliation. It must be so severe that an ordinary, reasonable person cannot cope. However, California does not require physical symptoms to result from the distress. A plaintiff does not need to show, for example, weight loss or sleeplessness.

There is no general duty to avoid negligently inflicting emotional distress in California unless the defendant owes a duty to the plaintiff. California courts have recognized three situations in which a plaintiff may bring an emotional distress suit under a direct victim theory:

• The negligent mishandling of corpses;
• The negligent misdiagnosis of a disease that could harm another; or
• The negligent breach of a duty arising out of a preexisting relationship.

Under the bystander theory, a bystander must have suffered severe emotional distress because of witnessing another’s injury or death. The bystander plaintiff must show that:

• The plaintiff was closely related to the injury victim;
• The plaintiff was present at the scene of the accident, and was aware that the victim was being injured; and
• The plaintiff suffered serious emotional distress, beyond that which would be expected in a disinterested bystander.

In order to recover, the plaintiff and victim must have had a sufficiently close relationship. This may include household members, parents, siblings, children, or grandparents. For example, while a mother and her son are on a sidewalk, a driver negligently swerves onto the sidewalk, hitting and injuring the son. If the mother suffers serious emotional distress, she may have a negligent infliction of emotional distress claim against the driver because she witnessed her son’s injury.

Negligent infliction of emotional distress claims are complex and may, because of the nature of the injury, be difficult to prove. Please contact the skilled San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. to schedule a free initial consultation.

• Irene ESS, Plaintiff and Appellant, v. ESKATON PROPERTIES, INC., et al., Defendants and Respondents.