EMOTIONAL HARM(Chapter 19)
Limiting Duties to protect against special types of harm Emotional Harm(Chapter 19 pg 561 & LL pg 136)
R3T §45 Intentional (Or Reckless) Infliction Of Emotional Disturbance (IIED) – D is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm. This is also “The Tort of Last resort.”
http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress
GTE Southwest, Inc. v. Bruce (pg. 561 & LL pg. 137) – Boss terrorized employees.
To prove intentional infliction of emotional distress (IIED) must prove:
a. Conduct was extreme or outrageous (markers of outrage – repetitive & abuse of power)
a. D intended to cause severe distress or recklessly risked that distress
b. D’s conduct actually caused P severe emotional distress
1. May infringe on free speech rights (the first amendment)/ onslaught of claims. Mere insult insufficient for IIED. Between strangers not enough, must be a relationship. Repetitive and not a one time deal helps prove IIED.
a.Exception: racial slurs in employee-employer context (Should be made by the jury).
2. Comment (l) Emotional disturbance caused by harm to a third person – limits recovery to bystanders who are close family members and who contemporaneously perceive the event.
a. Homer v. Long (pg. 567 & LL pg. 138) – Therapist (D) seduces P’s wife; causes divorce. D not liable to P (only to wife). P was close family member, but was not present, so D didn’t intend to harm P (unknown presence wouldn’t work either b/c D didn’t have the intent). ***Maybe if P was a patient of D’s there’s a special relationship, then D could be liable, or if D did it on purpose to hurt P.
IIED in cases involving third parties
1. Intentional or reckless caused severe emotional distress
2. To a member of the person’s immediate family who is present at the time, whether or to such distress results in bodily harm
3. To any other persons who are present at the time, if such distress results in bodily harm.
EMOTIONAL HARM(Chapter 20)
Negligent Infliction of Distress or Emotional Harm (NIED) ->Defendant’s negligent acts (Duty & Breach) puts the Plaintiff at immediate risk of personal injury. The risk of physical impact and the severe mental distress result or manifest in physical symptoms.
Parasitic Damages => The NIED claim goes along with the other negligence actions. If there is any physical impact then the NIED damages follow.
Zone of Danger => Risk of physical impact. This is an objective test.
Parasitic Damages
Traditional Bar
Impact Rule
Physical manifestation/
objective symptom rule
Note 1, p. 570
Rest. § 46, comment (b)
Mitchell, p. 569
Text pp. 570-71
P can recover from pain & suffering that results from another tort by D
D not liable for negligence if only causes emotional harm. Liable if P placed in immediate danger of bodily harm & emotional distress results.
Slight
her son injured, rushed to scene, found his body.
Rule: Zone of danger => Risk of physical impact This is an objective test.
Rule: Bystander
(guidelines approach)
Rule: Bystander
(bright-line rules approach)
Bystander (Rest.)
1. P w/in zone of danger of impact
2. P fears for own safety
3. Causes immediate shock/trauma
Is it foreseeable that P will suffer emotional harm from injury to third person?
Consider:
1. P close to scene?
2. P observe accident?
3. P/victim closely related?
1. P must be closely related to victim
2. P must be present at the scene at the time of the accident
3. P must suffer serious emotional distress
• 3rd person suffers serious bodily injury
• P suffers serious emotional distress
• P “perceives the event contemporaneously”
• P is close family member
