Negligent Infliction of Emotional Distress

If a person is injured by someone else’s intentional conduct, she may be able to recover in an action for intentional tort. For example, if someone intentionally hits that person, she may have a battery claim. She could also have a battery claim if the Defendant intentionally touched something closely connected to her. For example, perhaps defendant intentionally pulled Plaintiff’s backpack off of her as she was walking by. Plaintiff could recover for any injury caused as well as her pain and suffering. If there was no personal injury, she may have a separate claim for Intentional Infliction of Emotional Distress.

However, what happens if someone suffers emotional distress as a result of someone else’s unintentional conduct? Filing a claim for Negligent Infliction of Emotional Distress, or “NIED.” may be the key. In some states, in order to recover for NIED, Plaintiff has to prove that she suffered a physical impact before recovering for emotional distress CAUSED BY THE NEGLIGENCE of another, the emotional distress suffered must flow from PHYSICAL INJURIES the plaintiff sustained in an impact. Thus, the impact rule precludes the recovery of damages for NIED unless the emotional distress arises directly from the physical injuries sustained by the plaintiff in the impact.  The crux of a claim for negligent infliction of emotional distress is UNINTENTIONAL injury.

However, other states follow a modified rule, where recovery for NIED still requires direct physical impact, but that impact does not need to cause physical injury to the plaintiff, and the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact. The direct physical impact is sufficient to satisfy the modified impact rule where the facts are such that the alleged mental anguish is not likely speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight.

So, if a Defendant NEGLIGENTLY comes into contact with something closely connected to the plaintiff and it causes emotional trauma that was not speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight, the Plaintiff will recover for NIED in a jurisdiction that follows the modified impact rule. For example, if Defendant negligently fired a bullet that grazes the plaintiff’s backpack, and plaintiff  suffers emotional trauma as a result, Plaintiff could claim NIED in a jurisdiction that follows the modified impact rule.