Negligent Infliction of Emotional Distress (NIED)
A. General Rule
To recover for NIED, the plaintiff must show that:
1. The defendant breached a duty that created a risk of physical harm, and
2. The plaintiff suffered emotional distress as a direct result of that risk.
There are three main categories of recovery:
1. Impact Rule (historical, minority)
2. Zone of Danger Rule (modern)
3. Direct Victim or Bystander Recovery (recognized in California)
B. Impact Rule (Minority Rule – 1st and 2nd stages)
1. Traditional Impact Rule (Stage One):
o No recovery for emotional distress unless P suffered a physical impact, no matter
how slight.
o Emotional distress must be parasitic to physical harm.
Case: Mitchell v. Rochester R.R.
→ No recovery where fright caused miscarriage without physical impact.
Rule: Emotional harm without bodily impact is not actionable.
2. Softened Impact Rule (Stage Two):
o Allows recovery for emotional distress alone if there was any physical contact,
however slight (e.g., foreign objects in food).
o Physical injury from emotional distress often still required.
Example: Mouse hair in food touches roof of plaintiff's mouth — sufficient contact.
C. Zone of Danger Rule (Modern Majority + California)
Under this rule, the plaintiff may recover for NIED if:
1. Plaintiff was in the immediate zone of physical danger caused by the defendant’s
negligence;
2. Plaintiff suffered serious emotional distress from fear of physical harm; and
3. Distress caused physical injury or physical manifestations (e.g., miscarriage, ulcers).
Case: Dulieu v. White & Sons
→ P nearly run over by a horse, suffered miscarriage. Recovery allowed because she feared for her
own safety.
Case: Amaya v. Home Ice
→ No recovery for mother not in zone of danger when child was struck. Emotional distress alone was
insufficient.
D. Direct Victim Recovery (California-Recognized)
California allows direct victim recovery in specific relationships or contexts, where emotional harm is
especially foreseeable.
No zone of danger or physical injury is required if:
Defendant’s negligence occurs in a special relationship or context where emotional harm is
likely.
Examples:
Mishandling corpses
Erroneous death notices
Food contamination
Mishandling of newborns or medical results
Case: Molien v. Kaiser Foundation Hospitals
→ Doctor misdiagnosed wife with syphilis; husband (not a patient) could recover as a direct victim,
because ED was foreseeable.
Rule (Restatement 3d §46(b)): NIED recovery is permitted in relationships where negligent conduct
is especially likely to cause serious emotional harm.
E. Bystander Recovery (Dillon v. Legg – California Rule)
A bystander who witnesses injury to another may recover for NIED if they:
1. Are closely related to the injured victim (family);
2. Are present at the scene of the injury-producing event; and
3. Personally observe (or perceive) the event in real time.
These are guidelines, not strict elements, under Dillon v. Legg, though later narrowed by Thing v. La
Chusa (see that case if bar essay asks for bystander specifics).
Summary – Essay Tips:
Label Direct Victim vs. Bystander NIED distinctly.
Always ask: Is the plaintiff directly impacted or a witness?
If direct: Discuss zone of danger or relationship-based foreseeability.
If bystander: Apply Thing v. La Chusa's three elements.
Mention Molien for direct victim without physical risk.
Tie in Rest. 3d §46(b) if it helps support foreseeability.
Bystander Emotional Distress – California Approach
Under California law, a bystander may recover for negligent infliction of emotional distress (NIED)
when they witness a third party suffer injury due to the defendant’s negligence.
Dillon v. Legg (Foreseeability/Guideline Approach)
In Dillon v. Legg, the court held that a bystander who witnesses injury to a close relative may
recover for emotional distress if such harm was reasonably foreseeable.
The court articulated three foreseeability guidelines:
1. Proximity: Plaintiff was near the scene of the accident;
2. Perception: Plaintiff observed the accident as it occurred (sensory and
contemporaneous observance);
3. Relationship: Plaintiff had a close relationship to the injured party.
The court also imposed two additional conditions:
o There must be an actual injury to the third-party victim;
o Plaintiff must suffer some physical manifestation of emotional distress (though this
was later relaxed).
Thing v. LaChusa (Strict Elemental Approach)
In Thing v. LaChusa, the court rejected Dillon’s flexible foreseeability test and converted its
guidelines into mandatory elements.
The Thing court denied recovery to a mother who did not witness the accident but came
upon the aftermath, holding foreseeability alone was too vague.
The court held a bystander can recover for emotional distress only if:
1. Plaintiff is closely related to the injury victim;
2. Plaintiff is present at the scene of the injury-producing event at the time it occurs
and is then aware that it is causing injury;
3. Plaintiff suffers serious emotional distress beyond that of a disinterested witness.
Summary of California Law:
Thing governs bystander emotional distress claims in California.
Courts require all three elements from Thing to be satisfied.
Mere foreseeability of emotional distress is not sufficient; presence, awareness, and
relationship are all mandatory.
How to Use This in an Essay:
If you're answering a negligence or NIED essay question and the bystander plaintiff is at issue:
1. Issue: Whether the defendant owes a duty of care to the plaintiff bystander for emotional
distress caused by witnessing harm to another.
2. Rule: State the Thing v. LaChusa elements, and briefly explain Dillon as historical context or
to contrast if relevant.
3. Application: Analyze whether the bystander meets each of the three Thing elements.
4. Conclusion: Conclude whether the plaintiff can recover for NIED.
