You’ve probably heard the term “pain and suffering” and you probably already know that after being the victim of a car accident, slip and fall, or other personal injury that was the fault another, you are entitled to receive compensation for not only your past and future medical expenses, but also your psychological injuries that arise from the incident and/or your injuries. These psychological injuries include: emotional distress, suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Reading that list of psychological injuries, you can think of a million situations that cause anguish, fright, anxiety, etc., that aren’t accompanied by a personal injury. So can you bring a lawsuit against someone for causing you emotional distress without any accompanying personal injury?
In California, you can bring a claim for psychological damages that did not arise from a physical injury, but it is somewhat complicated and proving the claim can be even more complex. The claim is called “Negligent Infliction of Emotional Distress” or “NIED” for short. You can bring an NIED claim under two theories: (1) Bystander Victim NIED, or (2) Direct Victim NIED.
DIRECT VICTIM NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Direct Victim NIED is when Plaintiff claims their emotional distress did not arise from witnessing an injury to someone else, but when the Defendant violated a duty owed directly to them.
The elements you must plead and prove to be successful on a Direct Victim NIED claim are as follows:
(1) The Defendant was negligent;
(2) The Defendant’s conduct caused Plaintiff emotional distress; and
(3) Plaintiff suffered “serious” emotional distress.
However, the California Supreme Court has allowed Plaintiffs to pursue a Direct Victim NIED claim only in three situations (1) the negligent mishandling of corpses; (2) the negligent misdiagnosis of a disease that could potentially harm another; and (3) the negligent breach of a duty arising out of a preexisting relationship.
Therefore, you generally cannot bring a claim for NIED against a third party who caused you emotional distress by, for example, breaching a contract, calling you names, or damaging your property. However, situations may arise where the Defendant breached a duty arising out of a preexisting relationship. This is by far the most common way you can sue someone for Direct Victim NIED. This question is notoriously complex and must be analyzed on a case by case basis. Kirakosian Law has brought several Direct Victim NIED claims under this theory against employers, landlords, and medical providers for discrimination, harassment, wrongful termination, wrongful eviction, stalking, and similar situations where the Defendant had a preexisting duty.