The negligent causing of emotional distress is not an independent tort but the tort of negligence, so the the traditional elements of duty, breach of duty, causation, and damages apply.
What type of situation is this, a direct victim or a bystander?
The California Supreme Court has allowed plaintiffs to bring negligent infliction of emotional distress actions as “direct victims” in only three types of factual situations: the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879) the negligent
misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923), and the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076).
If as a bystander, the California Supreme Court held in Thing v. La Chusa (1989) 48 Cal.3d 644, 647:
"In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is 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 and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
These can be difficult, depending on the facts. Hopefully you can document well the damages suffered. When you make this type of claim, you open up your entire psych history to discovery, including an exam by a defense psych.
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