I'm getting really confused about who can recover when, and I have conflicting info in my outlines and different study materials. What is required for recovery re: both negligent and intentional infliction of emotional distress? Also, when can 3rd parties recover for each? Thanks.

1. ACT - What should Defendant do to be guilty?

Intentional - extreme and outrageuos act ( A debt collection agency calling repeatedly) - no threat of physical injury required

Negligent - cause threat of "physical impact"(eg. D was driving negligently and stops right near P, P had a heart attack) or
severe emotional distress likely to cause "physical symptoms"

2. INTENT- What should be the defendant's state of mind?

Intentional - Intent or even recklessness to cause severe emotional distress to D.

Negligent - Negligence in creating risk of "physical injury"

3. CAUSATION AND DAMAGES

Intentional - cause only severe emotional distress ( no physical harm required)

Negligent - D's conduct causes physical injury (shock which effects nervous system is sufficient, pains and suffering alone is not sufficient)

BYSTANDER RECOVERY

In both the bystander i) should by closely related to the injured person and ii) should be present at the scene of the injury. The difference is that in IIED, the defendant should know of these 2 facts. (logic - it is intentional, so defendant's knowledge is important) In IIED, defendant's knowledge is irrelevant, however the plaintiff shall suffer some physical harm.

Hope it helps!

 

Negligent EMOTIONAL distress.

Duty of care not to subject others to emotional distress which could foreseeably cause them physical injury through physical impact or threat of impact. No duty is owed towards third person's distress resulting from fear for another's safety unless:(1)

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Third party is in the zone of danger.

Third party is a close relative of the injured person.

D had knowledge of third party’s presence & relationship to injured party

example from PMBR: cop falsely arrests woman by her house. the woman's elderly father watching through window,,gets em distress, cop is not guilty b/c was not aware of close relative

Misska ? are you talking about NY or CA bar ? the rule are different is
those 2 states.

1) Negligent infliction = apply the negligence theory + physical injury
required - Use it as a Parasitic action in general. The dutyo of care is
the duty to avoid infliction of ED to others partys. The breach is 1)
either the threat of a physical injury if you argue a NIED by itself 2)
the other breach if you allege it as a parasitic cause of action.

2) Intentional = apply your definition (outrageous conduct that
transcend all bound of decency that CAUSE a Serious ED...) + no physical
injury required

3) Bystander :
- In NY : must be in the zone of the danger, have personally testify, be
related to the victim (only child or spouse)
- In CA: same theory to be in the zone of danger, but not limited to
injury to child or spouse.


Myriam

On 2/6/10 1:22 PM,