Craig Rosenbaum | March 21, 2022 | Personal Injury

Can you sue for emotional distress? Suing for infliction of emotional distress is possible in most US states, including New York. Two types of claims are possible:

  • Intentional infliction of emotional distress; and
  • Negligent infliction of emotional distress.

Among these two claims, negligent infliction of emotional distress is the most controversial. Until a few years ago, most states did not even recognize negligent infliction of emotional distress claims in the absence of accompanying physical injury.

Origin of the Claim

Negligent infliction of emotional distress is a claim that originated and developed in New York courts. The claim developed in cases such as Smith v. City of N.Y. and Greene v. Esplanade Venture Partnership, rather than as a statute created by the New York State Legislature. Such “judge-made law” is the source of a great deal of personal injury law in New York and other states. 

Two Theories of Liability for Negligent Infliction of Emotional Distress

New York recognizes two separate ways to win a negligent infliction of emotional distress claim. The facts you must prove to win are different for each claim.

Theory #1: The Direct Duty Theory of Liability

 Under the direct duty theory of liability, the plaintiff (the person who filed the lawsuit) must establish the following facts (“elements”) to win the claim: 

  • The defendant owed a duty of care to the plaintiff. This duty could be something as simple as the duty to drive carefully on public roads, or as complex as a doctor’s duty to perform surgery in a competent manner.
  • The defendant breached their duty of care (by driving recklessly, for example).
  • The defendant’s breach of their duty of care unreasonably endangered the plaintiff’s physical safety or caused the plaintiff to fear for their own physical safety.
  • The defendant’s conduct was outrageous and extreme (more so than mere negligence).
  • The defendant’s behavior caused the plaintiff to suffer extreme emotional distress.

You must prove each of the foregoing elements on a “more likely than not” basis, to win. This is a much easier standard to meet than the “beyond a reasonable doubt” standard used in criminal prosecutions.

Theory #2: The Bystander/”Zone of Danger” Theory of Liability

The bystander/zone of danger theory is a second way to win damages for negligent infliction of emotional distress. The elements of the claim under this theory are:

  • The defendant unreasonably subjected the plaintiff’s immediate family member to physical injury.
  • The family member died or suffered a serious injury.
  • The family member’s death or serious injury was a consequence of the defendant’s unreasonable behavior.
  • The plaintiff witnessed their family member’s serious injury or death.
  •  The plaintiff was within the zone of danger of the accident or incident that injured or killed their immediate family member.
  • The plaintiff suffered extreme emotional distress.

The “Zone of Danger” Rule

New York is one of only a few states that applies a “zone of danger” rule to some negligent infliction of emotional distress claims. To satisfy the “zone of danger” rule, the plaintiff must prove:

  • The existence of a real possibility existed that the plaintiff might have suffered serious injury or death in the incident that killed their immediate relative.
  • The plaintiff was aware of the death or serious injury of their immediate family member at the time it happened.
  • The “immediate relative” was the plaintiff’s parent, child, sibling, or grandchild. 

New York courts have yet to make it clear whether a grandparent can qualify as an “immediate relative” of the plaintiff.  

Some judges are relatively unfriendly towards negligent infliction of emotional distress claims. The reason is probably that they feel this claim unreasonably expands potential liability in a personal injury case. It is for this reason, among others, you probably need a New York personal injury lawyer to help you win your negligent infliction of emotional distress claim.

Contact Rosenbaum & Rosenbaum, P.C. and Get Help From Our Personal Injury Lawyers in New York City

If you’ve been injured in an accident in Manhattan, NY, and need legal help, contact our New York City personal injury lawyers at Rosenbaum & Rosenbaum, P.C. to schedule a free consultation.

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New York, NY 10005
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