Injury & Property Damage – What Elements Are Necessary to Make Of A Claim For Negligent Infliction Of Emotional Distress in Civil Litigation?

According to California law, negligent infliction of emotional distress is not an independent tort. Rather,  it’s merely the tort of negligence, coupled with the traditional elements of duty, breach, causation and damages. [See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.] To claim negligent infliction of emotional distress, a plaintiff must establish they suffered serious emotional distress “as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” [Id. at p. 1073] And this must be a preexisting, consensual relationship that gives rise to an interest in being free from emotional distress caused by another’s negligent conduct that warrants legal protection. [See Bro v. Glaser (1994) 22 Cal.App.4th 1398, 1441.)] In addition, California law recognizes two theories of recovery for negligent infliction of emotional distress:

1. the “bystander” theory
2. the “direct victim” theory

[See Burgess supra 2 Cal. 4th at 1071]

Three elements are necessary for a Plaintiff to establish a bystander claim:

1. Closely related to the injury victim
2. Present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim
3. Suffer resulting emotional distress beyond that which would be anticipated in a disinterested witness

[See Thing v. La Chusa (1989), 48 Cal.3d 644, 647]

Under the “direct victim” theory of recovery, a plaintiff must allege that a defendant owes them a duty, which the defendant breached and thereby legally caused the plaintiff’s damages. [See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 126] California law is well settled on the notion that no duty exists to avoid negligently causing emotional distress to another. [See Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th 965, 984] As such, it’s considered  a matter of law, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985.

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