Can you make a personal injury claim if someone didn’t physically harm you? Learn what counts as negligent infliction of emotional distress.
Not all personal injury claims involve a physical injury. An assault can happen even if someone attacks you without actually making physical contact.
Defamation involves an injury to your reputation, not your body. And a claim for Intentional Infliction of Emotional Distress (IIED) focuses on vile behavior meant to cause you anguish.
Negligent Infliction of Emotional Distress (NIED) is also a valid basis for a personal injury claim. Like IIED, it’s based on the injury of mental anguish or distress. Unlike IIED, the person who hurts you doesn’t have to intend to do so. In fact, the behavior of the person harming you doesn’t even have to be directed at you for an NIED claim to be successful.
This article will examine and explain the basics of NIED claims and how they work in different states. It will also discuss scenarios and the possibility of getting a money judgment.
What Is NIED?
Intentional Infliction of Emotional Distress (IIED)” and Negligent Infliction of Emotional Distress (NIED) sound similar, but they are very different.
A successful IIED claim must prove the intentions of the person causing the harm and must prove the person engaged in “extreme and outrageous conduct” that is unacceptable in civilized society.
A successful NIED claim doesn’t need to prove intent or outrageous behavior. Though laws vary from state to state, to win an NEID case, you must prove the at-fault person was negligent and that their negligence caused you to suffer an emotional injury.
1. A Negligent Act
Because “negligent” is the first word in the title of the claim, it makes sense that it’s the first element. At the most basic level, negligence is the failure to act with ordinary care. This means that the person you are suing (the defendant) failed to meet their duty of care, which means they did not follow the reasonable person standard.
Some examples of negligent conduct might be:
- A person opens the door and gets out of their car in a parking lot without turning the vehicle off. The car continues moving and rolls toward another person walking through the lot.
- A clown at a birthday party for small children engages in a juggling act. Halfway through the act, the clown starts juggling knives and drops one near a child.
- A taxi driver picks up a family and begins driving. The driver then checks their text messages while the car is moving. This diverts their attention from the road.
In each of the above examples, the person is engaging in far more careless behavior than the average adult would. That behavior is even more careless in the presence of bystanders who can be injured by the behavior.
Also, keep in mind that NIED claims may arise from behavior that causes other injuries. For example, negligent conduct that results in a wrongful death may also cause NIED. The mental suffering of the person who saw the death is a different injury arising from the same incident.
2. An Emotional Injury
Next, you have to show that you suffered severe emotional distress as a result of the negligent act. On this point, state laws differ on what you need to show. There are three main types of laws: impact, zone of danger, and foreseeability.
A few states, like Florida, follow the impact rule. This rule requires that you are touched, even slightly, by the result of the negligent act. A car drifting unattended through a parking lot would need to actually touch you in order for you to win your NIED claim in a physical impact state.
Other states, like New York and Illinois, use a zone of danger rule. With this rule, the negligent act must have put you directly in danger of physical harm. That danger would then cause you to fear for your safety.
In the case of a car drifting through a parking lot, the car would have to almost hit you in order for you to suffer NIED in a zone of danger state.
The majority of states adopt a foreseeability rule, like the one discussed by the California Supreme Court in Dillon v. Legg, a case where a mother files an emotional distress lawsuit against the negligent motorist she witnessed striking and killing her daughter as the child crossed the street.
The foreseeability rule establishes that the person who acted negligently should have reasonably been able to foresee that their act that hurt your loved one would cause you distress as a bystander. This means there can be serious emotional distress even if you are not in direct physical danger, as long as your family member or close relative is.
Under a foreseeability rule, if a car drifting through the parking lot either hits your child or nearly misses your child, you would have a claim for NIED. This is because a reasonable driver would assume that an unattended car drifting through a parking lot may run over children. It doesn’t matter that you were not at risk of personally being hit.
How Do You Prove Damages for NIED?
Once you have the basic elements established for a claim of negligent infliction of emotional distress, the lawsuit looks very similar to other kinds of lawsuits.
The main difference between an NIED claim and a typical personal injury claim is that, in many cases, you will not have medical bills or other evidence showing physical damage to your body.
This does not mean you don’t have to prove damages. You must still gather evidence to meet your burden of proof. You will also have to show causation, meaning that your damages were caused by the negligent conduct. In some states, you may even need to show physical symptoms of your distress.
For example, seeing your child placed in mortal danger might give you post-traumatic stress disorder. It could also cause sleep disturbances or nightmares. These injuries, though not physical, are very real. You can and should receive treatment for them. Use evidence of that treatment and the testimony of your doctors as evidence of damages.
Testimony will also be crucial in proving your case, which can come from either fact witnesses or expert witnesses.
Fact witnesses tell the jury what happened. They say how your injury was caused and how you were affected by the injury.
Expert witnesses have special qualifications and help the jury understand technical or scientific ideas.
For example, your family doctor might be a fact witness who can testify about treating you for distress after the traumatizing event. Your attorney might hire a psychiatrist as an expert witness to testify about the symptoms and effects of PTSD.
However you prove your emotional distress, it is important that you introduce evidence, not just state that you are distressed.
How Much Is an NIED Claim Worth?
As with other types of personal injury claims, you can usually achieve a settlement or jury verdict based on a combination of your medical costs (whether physical or mental health-related) plus an amount for your emotional distress and other non-economic damages.
Medical costs in this case can be therapy, prescription drugs or other treatment. Also, keep in mind that if your trauma caused substance dependence or addiction, your rehabilitation expenses may also be recoverable as damages.
In the vast majority of cases, this means you are looking at a payment between four figures and low five figures. For an emotional distress recovery only, without a full jury verdict, it would be rare to recover over $20,000. However, state laws vary almost as greatly as the facts in these cases, so it is important to have your case evaluated by a qualified lawyer in your state.
You Have a Right To Peace of Mind
Personal injury law protects your mental health just as much as your physical health. Sometimes your mental health can be carelessly injured by people who put you or your loved ones in danger. You don’t have to have a broken leg or a neck injury to deserve compensation for your traumatic experience.
Hopefully, you and your family came out of the frightening situation without physical injuries. But if you still have lingering emotional harm, it is worth your time to explore the possibility of a claim against the people who stole your peace of mind. Contact a qualified personal injury attorney in your state for a free consultation and case evaluation.
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