Negligent Infliction of Emotional Distress

A previous post on the Tremblay & Smith blog discussed the legal standard for claims of intentional infliction of emotional distress. But not all emotional injuries are caused by intentional or reckless action—sometimes ordinary negligence is to blame. This post addresses the status of Virginia law regarding negligent infliction of emotional distress (NIED) and a recent proposal to extend recovery to more potential plaintiffs. The Virginia Supreme Court in Hughes v. Moore[1]articulated the standard for recovery on a claim of negligently inflicted emotional distress: [W]here the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant’s negligence. The short quotation from the Hughes opinion contains a number of key points for the potential NIED plaintiff: (1) The plaintiff need not have experienced any physical contact from the defendant’s negligence; (2) but the plaintiff’s emotional distress must have resulted in some physical injury; (3) the compensable emotional disturbances include fright and shock; (4) the physical injuries must have been the natural result of the plaintiff’s emotional distress; and (5) the plaintiff must prove his or her case by clear and convincing evidence. The requirement that the plaintiff’s emotional distress must have proximately caused the physical symptoms may be seen as an articulation of the duty in every negligence case to prove that the injuries are the natural and probable result of the defendant’s actions; of course, where harm to others is...