American Journal of Law & Medicine

Negligent infliction of emotional distress: a focus on relationships.


Dan Boyles, Jr. secretly videotaped Susan Kerr while they engaged in sexual intercourse.(1) Boyles's friend, Karl Broesche, suggested the videotaping. Boyles agreed. Broesche and two other friends hid a video camera in the bedroom and videotaped themselves crudely joking and commenting on the situation. They left the camera running and snuck out of the house. The camera recorded the ensuing encounter between Dan and Susan.

Boyles took possession of the tape and showed it to friends on three occasions. Approximately ten people actually saw the tape. Susan Kerr learned of the tape's existence several months later, confronted Boyles, and eventually took possession of the tape. In the meantime, Kerr's reputation at her school, Southwest Texas State University, took a turn for the worse. She was called "porno queen" by many of her acquaintances, and was constantly confronted with questions about why she did it and whether she would do it again. Her academic performance suffered, she found it difficult to relate to men, and she eventually sought psychological counselling.

Kerr's claim for negligent infliction of emotional distress was denied by the Supreme Court of Texas. Although the court remanded the case in order to allow Kerr to pursue an intentional infliction of emotional distress theory, it refused to recognize negligent infliction of emotional distress as an independent cause of action in Texas.(2)

The court's decision in Boyles v. Kerr provoked diverse and varied reactions within the legal field including the following:

* [T]ort law cannot and should not attempt to provide redress for every instance of rude, insensitive, or distasteful behavior, even though it may result in hurt feelings, embarrassment, or even humiliation.(3)

* [C]ourts ... need to resist the hydraulic pressures of hard cases based on lurid facts.(4)

* Instead of redress, the women of Texas today receive only excuses.(5)

* [T]he court has sent a message to all these Texans [who have suffered sexual and emotional abuse] that they are second class citizens. It defies logic to have a system of justice that will compensate the victim of a car wreck but that will refuse to compensate the recipients of the most devastating of emotional injuries. Perhaps more significantly, this Court has sent a message to these citizens that their injuries do not merit judicial redress, leaving them with no alternative but to take justice into their own hands.(6)

These reactions illustrate both the controversy surrounding negligent infliction of emotional distress (NIED) claims and the difficulty in applying the principles and policies that underlie them. Some courts and commentators argue that policy concerns mandate strict limitations on the availability of recovery under an NIED theory.(7) Others claim that cases like Boyles v. Kerr illustrate the injustice and arbitrariness of the current NIED regime.(8) Finding the proper course between these two extremes has proven difficult, if not impossible.(9)

Over the last twenty-five years, courts have recognized with increasing frequency the validity of claims for NIED even when unaccompanied by some physical injury.)10) However, concerns over the possibility of a flood of litigation(11) and the need to limit liability in proportion to the defendant's culpability(12) led courts to develop threshold tests to determine the validity of claims for emotional distress. Most courts have adopted either a "zone of danger"(13) and/or a "physical consequences"(14) test to determine whether a plaintiff is a "direct" victim of the defendant's negligence.(15) In addition, many courts now accept "bystander" claims for NIED once a plaintiff satisfies several threshold requirements.(116) However, the characterization of a plaintiff's claim as "direct" or as a "bystander" is not always an easy task, and unfortunately, the designation of the claim often determines the likelihood of recovery by the plaintiff.(17)

This Note begins by examining the current state of the law governing NIED claims. The impact rule,(18) the zone of danger test,(19) and bystander recovery(20) are explained and analyzed. Part II concludes with a discussion of a new approach taken by a California court of appeals in Bro v. Glaser.(21) Part Ill examines the various policies underlying tort law, particularly the underpinnings of the rules governing NIED claims. The section concludes that many of the existing rules do not adequately account for many of the policy concerns they ostensibly serve. The Note argues that, among other things, the "contemporaneous perception" and "proximity" requirements for bystander claims create an arbitrary restriction unjustified by the competing principles at issue in emotional distress actions.(22) The Note proposes a "relationship test" which explains that, if policy concerns necessitate limiting principles for NIED claims, the lines should be drawn by reference to the relationships of the parties involved.(23) Although it is no panacea, the relationship test is less arbitrary than the existing rules of limitation in NIED cases and will not result in limitless liability for negligent defendants.


Traditionally, courts recognized emotional distress claims only when the psychic harm accompanied a physical injury.(24) The "pain and suffering" element of damages allowed individuals physically injured by a defendant's negligent conduct to recover for their mental distress.(25) However, fright alone could not provide the basis for a claim, and plaintiffs suffering no physical injury simply could not state a legally cognizable claim.(26) The requirement of a physical injury provided evidence of the genuineness of the claim,(27) and courts believed that the requirement limited recovery to truly deserving individuals.(28)

Subsequent advances in science and medicine undermined the "physical impact" requirement in at least two ways.(29) First, psychiatric medicine began to establish the validity of emotional injury as a very real and sometimes irreparable harm.(30) Second, advances in our understanding of mental harm helped establish the genuineness of a plaintiff's mental distress through the use of expert testimony.(31) Accordingly, courts became increasingly dissatisfied with the physical impact requirement.(32) The physical impact rule allowed some individuals suffering a slight physical injury to recover for minimal emotional harm, while others suffering severe emotional distress were unable to recover absent the requisite physical impact.(33) These results led many courts to discard the physical impact requirement.(34)

The abandonment of the physical impact requirement has not, however, led to the creation of an unrestricted and independent tort claim for NIED. Rather, courts proceed piecemeal, in a case-by-case fashion, attempting to adopt rules that balance the competing interests on each side and yet provide recovery for deserving plaintiffs. Predictably, an often confused and incoherent mass of case law has been the result.(35)


Many of the early attempts to expand theories of liability in emotional distress cases incorporated a zone of danger rule.(36) This rule allows individuals to recover for emotional distress resulting from the threat of severe bodily injury. In other words, if an individual is placed in the "zone of danger" created by the defendant's negligent act, then the creation of the risk of physical harm permits recovery. The rule is premised on the theory that a defendant violates a direct duty to the plaintiff by negligently creating a risk of bodily harm, the fear of which results in the plaintiff's emotional distress.(37)

The United States Supreme Court has adopted the zone of danger test for claims asserting NIED under the Federal Employer's Liability Act (FELA). In Consolidated Rail Corp. v. Gottshall,(38) the respondent-employee James Gottshall brought suit against his employer after watching his friend of fifteen years, Richard Johns, die of a heart attack" The Supreme Court, after an extensive survey of existing approaches to NIED claims, concluded that the zone of danger test properly balanced the concerns at issue in NIED cases.(40)

Below, the Court of Appeals for the Third Circuit had explicitly refused to adopt the zone of danger test for assessing NIED claims and instead asked whether "the factual circumstances ... provide a threshold assurance that there is a likelihood of genuine and serious emotional injury."(41) If So, then traditional negligence concepts such as duty, breach, cause, and injury govern analysis of the claim.(42) Under this approach, the court of appeals believed that Gottshall could recover for NIED and remanded the case to the district court for trial.(43)

The Supreme Court reversed and remanded the case, explaining that Gottshall's claim must be analyzed under the zone of danger test.(44) The Court believed that a more relaxed test for NIED claims would not be faithful to legislative intent when enacting FELA,(45) and held that the zone of danger test properly balances the competing concerns that arise in NIED cases.(46) The Court thought that the "potential for fraudulent and trivial claims"(47) and the possibility of "nearly infinite liability for defendants"(48) required the adoption of a possibly "arbitrary" test.(49)

However, as noted above, the zone of danger rule is not without its drawbacks as a general theory of liability.(50) The rule is at least arguably workable when the underlying fact pattern involves negligent conduct that places an individual in fear of bodily harm.(51) The rule, however, is both overinclusive and underinclusive.(52) For example, the test recognizes that emotional harm is a valid and legally cognizable injury. However, recovery is limited to emotional harm resulting from negligent conduct that creates risk of physical injury. Negligent conduct that causes severe emotional harm and yet does not create a fear of bodily injury is not actionable under a strict interpretation of the zone of danger test. Courts, however, do not generally distinguish among the kinds of emotional harm suffered by the plaintiff.(53) Given this fact, line-drawing that accepts as valid psychic harm arising from a fear of bodily harm and denies all other emotional distress claims seems simply arbitrary and unfair.(54)

Of course, faced with particularly compelling fact patterns, egregious conduct, and severe emotional harm, many courts have created exceptions to the zone of danger rule to allow recovery to deserving plaintiffs.(55) On the other hand, rather than creating exceptions to the rule, one scholar argues that courts often apply the zone of danger rule too narrowly.(56) Professor Davies argues that the underlying justification is premised upon a "pre-existing obligation" on the part of the defendant and "there is little reason to confine application of the rule to cases in which [the] plaintiff is placed at physical risk merely in a literal and geographic sense."(57) Professor Davies's point is a good one. A fair application of the underlying theory, that the defendant had a preexisting obligation to avoid causing harm, would broaden recovery under the zone of danger rule. Accordingly, it may be fair to impose liability in a "wide range of relationships between a plaintiff and defendant."(58)

Some jurisdictions add a "physical manifestations" requirement to the zone of danger rule, which limits recovery to cases in which the mental harm results in a physical ailment.(59) The physical manifestations requirement, like the old impact rule, ostensibly serves two purposes.(60) First, the rule limits a defendant's potential liability by restricting the class of persons potentially able to recover on an NIED claim. Second, it serves to prove the genuineness of the plaintiff's emotional distress and supporters of the rule emphasize precisely this point.(61)

The physical manifestations requirement suffers from many of the same defects as the impact requirement. The rule is both overinclusive and underinclusive.(62) It allows claims for emotional distress where rather trivial distress happens to physically manifest itself, and it denies relief to persons suffering from severe mental distress who unfortunately fail to develop any physical evidence of that distress." One court states that "[t]o ... require that, before one who is mentally injured may recover, he must at least regurgitate once seems ... to be imposing upon the law a requirement that makes little or no sense."(64) The problem is simply that the physical manifestations requirement, like the impact rule, is not directly related to whether a particular individual has suffered severe emotional distress.

Emotional distress affects the psyche in many ways, only some of which result in objective physical evidence of the distress.(65) In addition, one commentator points out that the physical manifestations rule "may actually encourage extravagant pleading and distorted testimony by the plaintiff in order to state a cause of action, since once a physical manifestation is established, damages are awarded almost entirely for mental anguish. …

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