Negligent infliction of emotional distress (NIED) is a tort claim that often gets cast aside by plaintiffs’ attorneys as being overly difficult to prove but, if it is presented correctly, the value of such a claim should not be discounted.
Elements of a Negligent Infliction of Emotional Distress Claim
There are three core elements to successfully proving a claim for negligent infliction of emotional distress. The plaintiff must allege that, “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as ‘mental anguish’), and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics and Gynecology Assocs., P.A., 237 N.C. 283 (1990).
Although these elements seem rather self-explanatory, there are several distinctions that separate an NIED claim from that of ordinary negligence. Fortunately, a 1990 case, Johnson v. Ruark, is able to explain many of the various idiosyncrasies of the tort.
In Johnson v. Ruark, the mother and father of a stillborn child sought to recover damages for negligent infliction of emotional distress against the doctors and medical association (“defendants”) that provided prenatal care to the mother. The alleged negligence was that the defendants had provided inadequate prenatal care by not properly treating the mother’s diabetic condition, thereby causing the death of their child. The court of appeals reasoned that the mother had suffered a “physical injury” from how the fetus was physically attached to the mother, and the father could also reasonably assert an emotional distress claim based on the foreseeability of a “physical injury.” The case was then reviewed by the Supreme Court for several questions of law.
Physical Impact is NOT Required
A common misconception is that a plaintiff must prove that the defendant driver’s negligence caused a physical impact in order to recover on a claim for negligent infliction of emotional distress. The root of the misconception is likely that tort claims require the plaintiff to prove some injury resulted from the other party’s wrongdoing, and a physical manifestation is perhaps the clearest presentation of such an injury. However, it is not the only way that an injury may be presented.
The Supreme Court, in Johnson v. Ruark, discussed several tests and requirements applied in other jurisdictions when determining negligent infliction of emotional distress, including the “physical impact” test used in some states. This test requires a physical manifestation of the injuries in order for a plaintiff to prevail on a claim for negligent infliction of emotional distress. The court went on to cite a number of previous North Carolina decisions involving considerations of mental anguish and injury before ultimately determining that “mental suffering” is just as real and compensable as “physical suffering” for the purposes of an NIED claim.
How Severe Does the “Mental Suffering” Need to be in Order to Recover for NIED?
The Ruark decision also commented on the severity of mental suffering required to assert a claim for emotional distress. The court cited a prior intentional infliction of emotional distress case, Dickens v. Puryear, 302 N.C. 437 (1981), as significant both for establishing that a mental injury was sufficient for an emotional distress claim and for determining what qualified as a sufficient mental injury. The Dickens case suggested that previous decisions had settled on the physical impact requirement because they were unable to distinguish “mere fright,” temporary regret or disappointment from “serious emotional or nervous disorders.” According to the Ruark decision, “’[S]evere emotional distress,’ means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.”
In basic terms, if you are able to recover from the emotional distress almost instantaneously, and it is not causing prolonged mental health issues requiring treatment with a trained medical professional, it is unlikely that you have suffered a compensable mental injury. Likewise, episodic depression and/or a generalized anxiety disorder that cannot be accurately traced back to the date of the incident will not suffice for an emotional distress claim.
You may also suffer from pre-existing mental health issues or mental injuries that could factor in your recovery process as well. Trained medical professionals in this field typically include therapists and psychiatric physicians who can diagnose your condition and render a medical opinion about the long-term implications of such a condition.
You will need to produce some evidence of your mental injury and the treatment you have received, such as medical records and bills, in order to recover on a claim for negligent infliction of emotional distress.
The Johnson v. Ruark decision is also notable for providing additional clarification on the issue of emotional distress caused by concern for another person. Some states only allow plaintiffs to pursue emotional distress claims when the plaintiff himself or herself has suffered physical impact or is faced with the imminent threat of physical harm.
North Carolina has adopted the rule that a plaintiff can still recover on an emotional distress claim when the emotional distress is caused by concern for harm to another person. This is also known as the “bystander doctrine” in some states, as it often involves a bystander plaintiff witnessing harm done to a family member, friend, or loved one at the scene of an accident.
What Does “Reasonably Foreseeable” Mean?
The second prong of a negligent infliction of emotional distress claim requires that it be reasonably foreseeable for the negligent act to have caused the plaintiff’s emotional distress. What does that mean?
If the negligent conduct of the defendant was directed at the plaintiff, himself or herself and the incident caused the plaintiff to develop a serious mental condition as a result, it is far easier to determine the reasonable foreseeability requirement. The question becomes whether or not the incident, taken as a whole, would have the impact that it had on the plaintiff.
For example, if the defendant barely tapped the rear end of the plaintiff’s vehicle, it will be very difficult to prove that the plaintiff’s subsequent anxiety disorder was caused by this incident, unless the plaintiff had some prior anxiety disorder that was exacerbated, and even then, it will be difficult to show that this minor collision caused the plaintiff to suffer much of a setback.
However, if the plaintiff was pursuing a modeling career when she was struck by a vehicle as a pedestrian and the subsequent treatment involved complete facial reconstructive surgery, it would be reasonably foreseeable for the plaintiff to become depressed and require treatment for her emotional distress.
If the plaintiff’s emotional distress was caused by concern for the well-being of another, the reasonable foreseeability prong typically requires significant analysis. The court provided three factors to be considered in Ruark: “ the plaintiff’s proximity to the negligent act,  the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned, and  whether the plaintiff personally observed the negligent act.”
Although the above guidelines in Ruark were only intended to be some factors worth considering, North Carolina courts have seemingly applied them to every decision since. For example, in Gardner v. Gardner, 334 N.C. 662 (1993), a child was riding in his father’s vehicle when the father crashed the vehicle, and the child’s mother raced to the hospital upon hearing the news only to witness a failed attempt to resuscitate the child. The mother sued the father for damages resulting from his negligent conduct that caused her emotional distress over the well-being of another. The court held that the mother failed to meet the first and third considerations of the Ruark guidelines, as she did not witness the accident, nor was she in close proximity to it. Therefore, her emotional distress claim was “too remote from the negligent act itself to hold [the] defendant liable for such consequences.”
Many states require that the plaintiff have a specific familial relationship with the victim of the defendant’s negligent act in order to recover, i.e. a parent as opposed to a friend. North Carolina does not appear to make this distinction, but a reasonably close relationship with the victim would be necessary in order to prevail on a claim for emotional distress caused by concern for another. However, paraphrasing from the Gardner decision, the fact that a plaintiff has a familial relationship with the victim does not in itself provide enough support to successfully meet the reasonable foreseeability requirement for an emotional distress claim.
Additionally, Gardener suggested another factor that the court may consider is whether the defendant would have any reason to know that the plaintiff shared a close or familial relationship with the victim or that the plaintiff was susceptible to severe emotional distress brought upon by the defendant’s negligent actions. This idea of the defendant’s knowledge of the plaintiff’s susceptibility has been applied to several cases since.
As with the statute of limitations requirement on all tort claims in North Carolina, plaintiffs have three (3) years to file a claim for negligent infliction of emotional distress or they forever lose the right to assert the claim. However, the three year period does not begin to accrue until the negligent actions of the defendant cause severe emotional distress to the plaintiff, meaning that the defendant’s negligent conduct is not the determining factor but rather when the plaintiff develops emotional distress as a result of the conduct. See Bryant v. Thalhimer Brothers, Inc., 113 N.C.App. 1 (1993)
In Bryant v. Thalhimer Brothers, Inc., the plaintiff sought damages for intentional infliction of emotional distress but the statute of limitations standard is the same for negligent infliction of emotional distress. The court stated that it “often take(s) years to manifest the severe emotional results…” that are attributed to the defendant’s conduct and therefore the statute of limitations must be based on the injury as opposed to the conduct of the defendant.
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