Negligent Infliction of Emotional Distress

 

Elements

To recover, the witness-plaintiff must prove that he or she:

  1. was located near the scene;
  2. was emotionally injured by the contemporaneous sensory observance of the accident; and
  3. was closely related to the victim.

Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

The "physical impact" requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993).

We therefore hold that any non-family "relationship" fails, as a matter of law, to qualify for NIED standing.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Example Cases

State v. Eaton, 710 P. 2d 1370 (Nev. 1985).

 

Proof

Because the test we have adopted is calculated to foster predictability and fairness in these matters, we conclude that the question of standing of "in-laws" to bring NIED claims must be left to the fact finder rather than determined as a matter of law. In this, I now retreat somewhat from my concurring position in Hill.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Damages

The actual closeness of the family relationship, whether or not the victim and the bystander are immediate family members, is always an issue of fact with respect to damages.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).


Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993)

Defenses

Misc

  • Mortuary liable for NEID

Boorman v. Nevada Mem'l Cremation Society, 236 P.3d 4 (Nev.,2010).

Also, our historical concern that emotional distress must be demonstrated by some physical manifestation of emotional distress is not implicated in this context. We need not question the trustworthiness of an individual's emotional anguish in cases involving desecration of a loved one's remains. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 362 (5th ed. 1984) (“[A group of cases eliminating the physical manifestation requirement] has involved the negligent mishandling of corpses ... [because there is] ... an especial likelihood of genuine and serious mental distress, ... which serves as a guarantee that the claim is not spurious.”); Allen v. Jones, 104 Cal.App.3d 207, 163 Cal.Rptr. 445, 450 (1980) (concluding that “damages are recoverable ... without physical injury for negligent mishandling of a corpse”); Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37, 44 (1990) (exempting the physical manifestation of emotional distress requirement in cases involving the negligent handling of a deceased person's remains).

Boorman v. Nevada Mem'l Cremation Society, 236 P.3d 4, 8 (Nev.,2010).

We now conclude, contrary to the plurality holding in Hill, that standing issues concerning "closeness of relationship" between a victim and a bystander should, as a general proposition, be determined based upon family membership, either by blood or marriage. Immediate family members of the victim qualify for standing to bring NIED claims as a matter of law. See Hill, 114 Nev. at 820, 963 P.2d at 485 (Maupin, J., concurring). When the family relationship between the victim and the bystander is beyond the immediate family, the fact finder should assess the nature and quality of the relationship and, therefrom, determine as a factual matter whether the relationship is close enough to confer standing. This latter category represents the "few close cases" where standing will be determined as an issue of fact, either by a jury or the trial court sitting without a jury. See id. at 820, 963 P.2d at 485. We therefore hold that any non-family "relationship" fails, as a matter of law, to qualify for NIED standing.

Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

 

Recovery may not be had, under this cause of action, for the "grief that may follow from the death of the related accident victim," for example.

State v. Eaton, 710 P. 2d 1370 (Nev. 1985).


In addition, because the 51s satisfied their legal duty in this case as a matter of law, we conclude that Mr. Turner's NIED claim fails and that the district court did not err in granting summary judgment on that claim. See Moon v. Guardian Postacute Services, Inc., 95 Cal.App.4th 1005, 116 Cal.Rptr.2d 218, 220-21 (2002) (explaining that "NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages").

Turner v. Mandalay Sports Entertainment, LLC, 180 P.3d 1172 (Nev. 2008).
 

The Dillon Rule [Foreseeability and Zone of Impact]

[TrucCounsel Editor Note: It is important to understand Nevada's interpretation of the Dillon Rule.  This begins with State v. Eaton.  I recommend that you read it carefully. State v. Eaton, 710 P. 2d 1370 (Nev. 1985).]

 

We further conclude that persons who may assert such a claim do not need to observe or perceive the negligent conduct, or demonstrate any physical manifestation of emotional distress. Requiring a potential plaintiff to observe or perceive the negligent conduct would essentially grant immunity to persons who negligently handle a deceased's remains in many instances because the activities of a mortuary mostly occur behind closed doors.

Boorman v. Nevada Mem'l Cremation Society, 236 P.3d 4, 8 (Nev.,2010).

 

Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court's test for negligent infliction of emotional distress. Id. at 715, 710 P.2d 1370.

 

 In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist's negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.

Crippens v. Sav on Drug Stores, 114 Nev. 760, 762-63, 961 P.2d 761, 763 (1998)

 

 

 
 

If you like us, please share us.

Jared Richards is the managing partner of Richards & Associates, a Nevada law firm focusing on personal injury, business litigation and probate. To learn more about Jared Richards, visit his Google+ Profile or his website.