Someone who witnesses a severely traumatic event, such as a bystander at the scene of a violent crime, may be able to make a claim for negligent infliction of emotional distress (NIED). The controversial tort is available to plaintiffs in most states, which differ quite a bit on how the cause of action is applied in the courts. Unlike intentional infliction of emotional distress, in which intent is the central consideration, NIED assumes the defendant has a legal duty to use reasonable care with regard to the plaintiff.

The scope of this legal duty -- and how a plaintiff's standing is determined -- is widely interpreted by the courts. The elements of a negligent infliction of emotional distress claim, differences among state laws, remedies, and other important aspects of the tort are discussed below.

Negligent Infliction of Emotional Distress: Overview

The tort of NIED may apply to situations where someone suffers some mental or emotional harm (shock, trauma, etc.) from the negligence of another. This does not apply when the distress is a direct result of a physical injury. Many of these claims arise from the traumatic experience of witnessing a relative or loved one's serious injury or death. For example, a woman arrives at the scene of a drunk driving accident and witnesses the final breaths of her dying spouse. She may have an NIED claim against the drunk driver.

Elements of an NIED Claim

The elements required in all states for this tort include the negligence of the defendant and the emotional injury to the plaintiff. Depending on the state, the facts of an NIED claim must adhere to either the "impact" rule, the "zone of danger" rule, or the "foreseeability" rule in order for it to be valid:

• Foreseeability Rule - The defendant must have been able to reasonably foresee that his or her actions would have caused the emotional distress (followed by most states).
• Zone of Danger Rule - The plaintiff was in a specific "zone of danger" and at risk of physical harm, causing fear.
• Impact Rule - Defendant's negligent act had at least a minor impact on the plaintiff, causing injury (very few states follow this).

NIED Claims and State Laws

State courts have very different interpretations of negligent infliction of emotional distress, and most limit the use of this tort. Some states address NIED through statute, but typically only to provide immunity to certain people (such as police officers or fire fighters). The rules and parameters for what constitutes a valid NIED claim (and whether it even stands as its own tort) are shaped by the state courts.

One of the most important precedents was established with the California Supreme Court's 1968 Dillon v. Legg ruling, which was the first to award damages for NIED as a stand-alone tort. The Court in this case ruled in favor of a plaintiff who suffered emotional distress from witnessing a relative's death; it has been cited numerous times in other states' courts since.

The following are examples of state NIED laws, as established through the courts:

• Kansas- Plaintiff's injury must fall within the definition of "physical injury," which does not include common symptoms of PTSD, in order to qualify as a valid NIED claim. Also, the injury must appear within a short span of time after the alleged emotional disturbance.
• California- Negligent conduct that causes plaintiff to reasonably fear for his or her safety may sue for the resulting shock and nervous distress, even in the absence of actual impact.
• Texas - Plaintiff may recover for NIED only if he or she witnessed an accident (at close proximity) where the victim was a close relative (such as a parent, sibling, or child).
• Illinois- Plaintiff must establish that he or she suffered physical injury or illness as a result of emotional distress experienced directly or as a bystander within a zone of physical danger.

Remedies for NIED Claims

As with the underlying case law that guides negligent infliction of emotional distress claims, states differ on how damages are awarded in such claims. Generally, payment of damages for NIED claims should be proportional to the seriousness of the emotional injury. In practice, courts often have a difficult time quantifying emotional harm in such cases, but this may be balanced with the need to prevent similar acts in the future (in other words, damages as a deterrent). Still, NIED claims typically are compensated at a lower amount than personal or property injury claims.

Get Professional Legal Help With Your NIED Claim

You may have a valid claim for negligent infliction of emotional distress and not even know it, depending on how your state's courts interpret the tort. NIED claims are not easy to prove, so you may want to contact an injury attorney if you believe the negligent acts of another caused you severe emotional distress. Get started today by finding a local personal injury attorney experienced in such claims.