Learning Outcomes
This article addresses specific categories of intangible injury recoverable under negligence, primarily focusing on negligent infliction of emotional distress (NIED) and the general prohibition against recovery for pure economic loss. It outlines the requirements for NIED claims, including the impact rule, the zone of danger rule, and bystander recovery. After reading this article, you will understand the elements and limitations of these claims, enabling you to analyze related fact patterns on the MBE.
MBE Syllabus
For the MBE, you are expected to understand the limitations on recovering for intangible injuries in negligence actions. This requires distinguishing these claims from standard negligence involving physical harm or property damage. You should be prepared to:
- Identify the elements required for Negligent Infliction of Emotional Distress (NIED).
- Distinguish the different approaches to NIED: the impact rule, the zone of danger rule, and bystander recovery rules.
- Apply the requirements for bystander recovery (relationship, presence, perception).
- Understand the general "economic loss rule" and its exceptions.
- Differentiate NIED from Intentional Infliction of Emotional Distress (IIED).
- Analyze causation and damage requirements specific to these intangible injury claims.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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A plaintiff witnesses her spouse being struck and seriously injured by a negligently driven bus. The plaintiff was standing across the street and was never in physical danger herself. She suffers severe emotional distress resulting in diagnosed anxiety disorder. Under the majority "bystander recovery" rule, is the plaintiff likely to recover for NIED?
- Yes, because she suffered severe emotional distress.
- Yes, because she is closely related to the victim and contemporaneously perceived the event.
- No, because she was not within the zone of physical danger.
- No, unless she also suffered some physical impact from the event.
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A company's main supplier negligently causes a power outage affecting an entire industrial park. The company suffers significant loss of profits due to the shutdown but experiences no physical damage to its property or personnel. Can the company recover its lost profits from the supplier in a negligence action?
- Yes, because the supplier's negligence directly caused the economic loss.
- Yes, if the supplier could foresee that a power outage would cause economic losses to businesses in the park.
- No, because the economic loss rule generally bars recovery for purely economic losses in negligence.
- No, unless the supplier's conduct was reckless or intentional.
Introduction
While the core of negligence law deals with physical injury to person or property, tort law also addresses certain intangible harms. The primary areas tested on the MBE under this heading are Negligent Infliction of Emotional Distress (NIED) and the limitations imposed by the Economic Loss Rule. These doctrines recognize that negligent conduct can cause real harm beyond physical impact, but they impose specific limitations to prevent potentially wide-ranging liability. Understanding these limitations is essential for MBE success.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)
NIED allows recovery for emotional distress resulting from the defendant's negligence, but only under specific, limited circumstances. Historically, courts required a physical "impact" for any recovery for emotional distress (the "impact rule"). Most jurisdictions have moved beyond the impact rule but still require more than simple negligence causing distress. The main approaches are the "zone of danger" rule and rules allowing "bystander recovery."
Key Term: Negligent Infliction of Emotional Distress (NIED) A tort allowing recovery for severe emotional distress caused by another's negligent conduct under specific, limited circumstances (e.g., plaintiff was in the zone of physical danger or qualifies as a bystander).
The Zone of Danger Rule
Most jurisdictions allow recovery for NIED if the plaintiff can show:
- Negligence: The defendant's conduct was negligent.
- Zone of Physical Danger: The plaintiff was within the zone of physical danger created by the defendant's negligence (i.e., the plaintiff was personally at risk of physical harm).
- Resulting Physical Symptom: The plaintiff suffered severe emotional distress that resulted in some physical symptom (e.g., heart attack, miscarriage, diagnosed anxiety disorder).
The threat of physical impact must be directed at the plaintiff. Fear for one's own safety is the key.
Key Term: Zone of Danger The area within which a plaintiff is physically endangered by the defendant's negligent conduct. Presence within this zone is often required for NIED recovery if the plaintiff did not suffer direct physical impact.
Bystander Recovery
Many jurisdictions also permit a plaintiff outside the zone of danger to recover for emotional distress resulting from negligently inflicted injury to a third person if the plaintiff qualifies as a "bystander." The requirements typically are:
- Close Relationship: The plaintiff and the person injured by the defendant are closely related (typically spouse, parent, child; some jurisdictions extend this to other close family members).
- Presence and Perception: The plaintiff was present at the scene of the injury-causing event and perceived it as it occurred. "Perception" generally means witnessing the event directly through sight or sound.
- Severe Emotional Distress: The plaintiff suffered severe emotional distress as a result (often beyond what a disinterested witness would experience). Many jurisdictions still require resulting physical symptoms, though some have relaxed this for bystanders.
Key Term: Bystander Recovery Allows a plaintiff outside the zone of danger to recover for NIED if they are closely related to the person injured by the defendant's negligence, were present at the scene, and perceived the injury-causing event.
Worked Example 1.1
Driver negligently runs a red light and narrowly misses striking Pedestrian, who is in the crosswalk. Pedestrian is terrified but physically untouched. Pedestrian later suffers nightmares and develops a persistent nervous tic, diagnosed by a psychiatrist as resulting from the incident. Can Pedestrian recover for NIED in a jurisdiction following the zone of danger rule?
Answer: Yes, likely. Driver was negligent. Pedestrian was clearly within the zone of physical danger created by Driver's negligence. Pedestrian suffered severe emotional distress (terror) resulting in physical manifestations (nightmares, persistent tic). All elements of the zone of danger rule appear to be met.
Special Relationships and Circumstances
Courts sometimes allow NIED recovery outside the zone of danger or bystander rules where a special relationship exists or the circumstances are particularly likely to cause severe distress. Examples include:
- Negligent Mishandling of a Corpse: Relatives may recover for emotional distress caused by the negligent mishandling of a family member's body by a mortuary or hospital.
- Negligent Misinformation about Death/Illness: Negligently providing false information about a relative's death or serious illness (e.g., a hospital erroneously telling someone their spouse has died) can support an NIED claim.
Damages in NIED Cases
Plaintiff must generally prove severe emotional distress. As noted, many jurisdictions require accompanying physical manifestations, although this requirement is softening, especially in bystander cases.
THE ECONOMIC LOSS RULE
The economic loss rule is a significant limitation on negligence recovery. It generally provides that a plaintiff cannot recover for purely economic losses (such as lost profits or lost business opportunities) resulting from the defendant's negligence if the plaintiff has not suffered any accompanying physical injury to their person or property.
Key Term: Economic Loss Rule A common law doctrine generally prohibiting recovery in negligence for purely economic losses unaccompanied by physical injury to the plaintiff's person or property.
The rationale is to prevent potentially limitless liability that could arise if simple negligence causing economic ripples were actionable by anyone affected.
Worked Example 1.2
Factory A negligently releases a chemical plume that forces the temporary closure of a bridge. Trucking Company B, which relies on the bridge, suffers significant financial losses due to rerouting its trucks and lost delivery contracts during the closure. Company B suffers no physical damage to its trucks or other property. Can Company B recover its financial losses from Factory A?
Answer: No, likely not. Company B suffered purely economic losses (lost profits, increased operating costs). Because there was no physical injury to Company B's person or property caused by Factory A's negligence, the economic loss rule bars recovery.
Exceptions to the Economic Loss Rule
While the rule is broad, exceptions exist, particularly where:
- Special Relationship: A special relationship exists between the parties (e.g., auditor-client, attorney-client), creating a duty to avoid causing economic harm even without physical impact.
- Private Nuisance: Economic losses flowing from a private nuisance may be recoverable.
- Specific Statutes: Some statutes may expressly allow recovery for certain economic losses caused by negligence.
Summary
Recovery in negligence for intangible injuries like emotional distress or pure economic loss is limited. NIED claims typically require the plaintiff to have been within the zone of physical danger created by the defendant's negligence and to suffer resulting physical symptoms. Alternatively, bystander recovery may be possible if the plaintiff is closely related to the direct victim, was present at the scene, and perceived the injury-causing event. The economic loss rule generally bars recovery for purely economic losses in negligence unless accompanied by physical injury to the plaintiff's person or property, subject to limited exceptions (e.g., special relationships).
Key Point Checklist
This article has covered the following key knowledge points:
- Negligence liability for intangible injuries is restricted.
- NIED requires specific circumstances beyond ordinary negligence causing distress.
- The "zone of danger" rule allows recovery if the plaintiff was personally at risk of physical harm and suffered resulting physical symptoms.
- Bystander recovery allows NIED claims for plaintiffs outside the zone of danger if closely related to the victim, present at the scene, and perceived the event.
- Special circumstances (e.g., mishandling corpses) may allow NIED recovery.
- The economic loss rule generally bars recovery for purely economic losses in negligence.
- Physical injury to person or property is usually required to recover associated economic losses in negligence.
- Exceptions to the economic loss rule exist, notably for special relationships.
Key Terms and Concepts
- Negligent Infliction of Emotional Distress (NIED)
- Zone of Danger
- Bystander Recovery
- Economic Loss Rule
