35.4 Negligent Infliction of Emotional Distress, Intangible Harms & Pure Economic Loss
Key Takeaways
- A plaintiff who suffers emotional distress from a defendant's negligence without physical injury may generally recover if she was within the zone of danger of physical harm, and many states still require physical manifestations of the distress.
- A bystander who was not endangered may recover in some states if she was closely related to the injured person, present at the scene, and aware of the injury as it occurred, as in Thing v. La Chusa, while other states allow bystander recovery only within the zone of danger.
- Duties to avoid purely emotional harm also arise from relationships and undertakings especially likely to cause serious distress, such as mishandling a corpse or wrongly reporting a death, and fear of future disease usually requires present injury or a serious, likely risk.
- Loss of consortium, prenatal injuries, wrongful birth, and, in a few states, wrongful life are intangible or relational injuries with their own rules.
- Negligence ordinarily does not allow recovery of purely economic loss without personal injury or damage to the plaintiff's property, but exceptions include negligent misrepresentation, negligent services for intended beneficiaries such as will beneficiaries, and, in some states, particularly foreseeable plaintiffs.
35.4 Negligent Infliction of Emotional Distress, Intangible Harms & Pure Economic Loss
NCBE's outline treats claims for mental distress not arising from physical harm, other intangible injuries, and pure economic loss as special limits on negligence liability. Courts restrict these claims because the harm is easy to allege, hard to measure, and potentially unlimited in scope.
Negligent Infliction of Emotional Distress (NIED)
Where a defendant's negligence causes pure emotional distress without physical contact, liability is strictly cabined:
- The Zone of Danger Framework (Direct Victims):
- Defendant was negligent;
- The negligence placed the plaintiff in immediate threat of physical impact within the physical zone of danger;
- The plaintiff feared for their safety; and
- In many jurisdictions, the distress must produce objective physical manifestations (such as severe shock, nausea, or migraines), although a growing number of states have dropped this requirement.
- Bystander NIED (Dillon v. Legg, Cal. 1968; Thing v. La Chusa, Cal. 1989): In states following this approach, a plaintiff who witnesses injury to another may recover if:
- The plaintiff is closely related to the injured victim (spouse, parent, child, sibling);
- The plaintiff was present at the scene of the accident; and
- The plaintiff experienced a contemporaneous sensory perception of the traumatic event and was then aware that it was causing injury to the victim.
- Many of these states also require serious emotional distress. Other states allow bystander recovery only if the plaintiff was also within the zone of danger.
- Special Relationship Exceptions: Duty recognized without physical danger for the mishandling of a close relative's corpse or the erroneous transmission of a commercial message announcing the death of a close family member.
More on Emotional Distress Claims
The Impact Rule
Courts once required a physical impact before allowing recovery for negligently caused emotional distress, although even a slight impact was enough. Most states have replaced the impact rule with the zone-of-danger rule or broader tests, but a few keep a version of it.
Other Direct Victims
The Restatement (Third) of Torts allows recovery for serious emotional harm caused by negligent conduct that either places the plaintiff in immediate danger of bodily harm or occurs in the course of activities, undertakings, or relationships in which negligence is especially likely to cause serious emotional harm. Courts have applied this idea to the negligent handling of a relative's body, erroneous reports of a family member's death, and, in some states, negligent misdiagnosis of a serious disease.
Fear of Future Disease
- General approach: A person exposed to a toxic substance who has no present physical injury generally cannot recover for fear of developing a future disease unless the fear is serious and reasonable. Some courts require that the disease be more likely than not to develop, absent aggravated misconduct (Potter v. Firestone Tire & Rubber Co., Cal. 1993).
- Federal Employers' Liability Act cases: Railroad workers exposed to asbestos without symptoms could not recover emotional distress damages (Metro-North Commuter Railroad Co. v. Buckley, 1997), but workers who already had asbestosis could recover for a reasonable fear of cancer (Norfolk & Western Railway Co. v. Ayers, 2003).
- Medical monitoring: Some states allow exposed plaintiffs to recover the cost of medical monitoring without present injury (Ayers v. Township of Jackson, N.J. 1987); others reject such claims.
Other Intangible and Relational Injuries
- Loss of consortium: Covered in Section 35.2.
- Prenatal injuries: A child born alive may recover for injuries negligently caused before birth, and many states allow a wrongful death claim for the death of a viable fetus.
- Wrongful birth: Most states allow parents to sue when a provider's negligence, such as failing to detect a genetic condition, deprives them of the choice to avoid the birth of a child with a serious disability. Recovery is usually limited to the extraordinary costs associated with the disability.
- Wrongful pregnancy: When a sterilization procedure negligently fails and a healthy child is born, most states allow recovery for the costs of the pregnancy but not the ordinary costs of raising the child.
- Wrongful life: Most states reject a child's own claim that she would have been better off not being born. A few states, including California, New Jersey, and Washington, allow the child to recover extraordinary medical expenses.
Pure Economic Loss
The General Rule
A plaintiff generally cannot recover in negligence for economic loss that is not accompanied by personal injury or physical damage to the plaintiff's own property. In Robins Dry Dock & Repair Co. v. Flint (1927), a company that had chartered a ship could not recover the value of its lost use when a repair company negligently damaged the ship, which the charterer did not own. Courts justify the rule by the risk of indeterminate liability and the ability of parties to allocate economic risks by contract.
Exceptions
- Negligent misrepresentation: A professional who supplies false information for the guidance of others in business transactions may be liable to a limited group of intended users (see Section 38.3).
- Services for intended beneficiaries: A lawyer who negligently drafts a will may be liable to the intended beneficiaries who lose their gifts (Lucas v. Hamm, Cal. 1961).
- Particularly foreseeable plaintiffs: New Jersey allowed an airline to recover business losses when a railroad's negligence caused a chemical leak that forced evacuation of its nearby terminal, because the airline was among an identifiable class of particularly foreseeable plaintiffs (People Express Airlines, Inc. v. Consolidated Rail Corp., N.J. 1985).
- Commercial fishing: Some courts allow commercial fishers to recover lost profits from oil spills that harm fisheries (Union Oil Co. v. Oppen, 9th Cir. 1974).
- Public nuisance: A plaintiff whose economic harm differs in kind from the public's may sue for public nuisance (see Section 38.1).
Products and Construction Defects
When a defective product damages only itself, the owner's remedy is in contract and warranty rather than tort (East River Steamship Corp. v. Transamerica Delaval, Inc., 1986; see Section 37.2). States divide on whether homeowners may sue builders in negligence for construction defects that cause only economic loss.
| Claim | Typical Requirement |
|---|---|
| Direct victim of a near miss | Within the zone of danger; many states also require physical manifestations |
| Bystander | Close relative who was present and aware of the injury as it occurred, or presence in the zone of danger, depending on the state |
| Special relationship or undertaking | Physical danger not required in cases such as mishandling a corpse or a false death report |
| Fear of future disease | Present injury or a likely, serious risk, depending on the state |
| Pure economic loss | Generally barred, with exceptions for misrepresentation, intended beneficiaries, and particularly foreseeable plaintiffs |
In one case, a mother was inside her house when she heard a loud crash and screaming outside. She ran out and found that her 10-year-old son had been struck moments earlier by a negligent driver and was lying injured in the street. In a separate case in the same jurisdiction, a father watched from the sidewalk as a negligent driver struck his daughter in a crosswalk. Both parents suffered serious emotional distress, and neither was in physical danger. The jurisdiction follows Thing v. La Chusa. Which parent may recover for negligent infliction of emotional distress?
A driver negligently lost control of his car, which jumped a curb and crashed through a storefront window inches from where a shopper was standing. The shopper was not touched but was terrified, and in the following weeks she suffered recurring nightmares, nausea, and panic attacks that a physician diagnosed as post-traumatic stress. The jurisdiction follows the zone-of-danger rule and requires physical manifestations of distress. May the shopper recover from the driver?
A construction crew negligently cut an underground power cable, shutting off electricity to a commercial district for two days. A restaurant in the district, whose property was not damaged, lost $15,000 in profits while it was closed, and a nearby hotel lost $40,000 in bookings. The utility company that owned the cable spent $25,000 repairing it. All three sued the construction company for negligence. The jurisdiction follows the traditional economic loss rule. Who may recover?