Negligent Infliction of Emotional Distress

January 22, 2019

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 not foreseeable, the law of Virginia allows no recovery in tort[2]. The Virginia Supreme Court has also ruled that a third-party bystander to a defendant’s negligence cannot recover for emotional distress because defendants owe bystanders no duty of care.[3]

In 2018, the General Assembly introduced and subsequently carried over to its next session a bill that would have expanded both the torts of intentional and negligent infliction of emotional distress in Virginia to allow bystanders who witness an event causing the personal injury or wrongful death of a victim to recover for their emotional distress if they are related to the victim, or if the plaintiff was in close proximity to the event causing injury or death[4]. The bill’s language did not limit recovery to the plaintiff’s fright and shock, but instead would have broadened the prospects for recovery to include emotional distress, generally[5]. Similarly, under the proposed bill a person not related to a physically injured or killed victim could recover if they were “in close proximity to the victim at the time the event occurs and . . . aware that such event is causing injury to or the death of the victim.” As an example, an unrelated bystander in a crosswalk who witnesses another person in the crosswalk getting hit by a car could recover under the new bill, but not under existing law. The bill’s text provides for damages “with or without physical impact or physical injury to the bystander”[6], so it might render obsolete the existing requirement of a physical manifestation of the plaintiff’s emotional distress. Significantly, the recent bill would lower the burden of proof from clear and convincing evidence to a preponderance of the evidence[7]. For now, bystander emotional distress in Virginia is probably limited to damages for the sorrow, mental anguish, and solace of family members in wrongful death cases, and excludes fright and shock from witnessing the traumatic event or the claims of unrelated bystanders.

Virginia is in the minority of states that do not allow recovery for the emotional distress experienced by family members or bystanders in close proximity to the injury or death of another[8]. For now potential NIED plaintiffs must show by clear and convincing evidence that they suffered some physical injury from their emotional distress, and that their injuries were foreseeable to the defendant from the distress his actions caused—a high bar. Pleading and proving an NIED claim can be very difficult, and readers who have suffered emotional distress from a negligent act should seek the advice of an attorney.

[1] 197 S.E.2d 214, 219 (Va. 1973).

[2] See, e.g., RGR, LLC v. Settle, 288 Va. 260, 275-76 (2014).

[3]Gray v. INOVA Health Care Services, 257 Va. 597 (1999). The court in Gray may be viewed as having assumed what it set out to prove in labeling the plaintiff, a mother who experienced emotional distress from witnessing acts of medical malpractice performed on her child, a “bystander”: a mother’s emotional distress is the natural and probable result of witnessing acts of negligence that injure her child.

[4] SB 694 “[p]rovides that a bystander who witnesses, live and in-person, an event during which the intentional or negligent infliction of injury to or death of a victim occurs may recover damages for resulting emotional distress, proven by a preponderance of the evidence, with or without a physical impact or physical injury to the bystander, if (i) the bystander is related to the victim or (ii) although not related to the victim, the bystander is in close proximity to the victim at the time the event occurs and is aware that such event is causing injury to or the death of the victim.”

[5] Id.

[6] Id.

[7] Id.

[8] Restatement (Third) of Torts § 48 cmt. a and reporter’s notes.