PastPaperHero | Negligence - Other intangible injuries

Learning Outcomes

This article explains negligence recovery for intangible injuries, including:

Differentiating parasitic emotional distress damages from standalone NIED claims and spotting when NIED frameworks are triggered.
Comparing the impact rule, zone of danger rule, and bystander recovery tests, and identifying majority versus minority approaches.
Stating the elements for bystander NIED (close relationship, presence, contemporaneous perception, and serious distress) and for special-relationship NIED scenarios such as mishandling a corpse or erroneous death notifications.
Identifying when physical manifestations or objective evidence of distress are required and how they are proven on an exam.
Distinguishing NIED from IIED and applying causation, damages, and negligence defenses to NIED fact patterns.
Defining pure economic loss, consequential economic loss, and relational economic loss, and applying the economic loss rule to bar or allow recovery.
Recognizing key exceptions to the economic loss rule, especially professional negligence, negligent misrepresentation, product cases involving damage to other property, and statutory carve-outs.
Using a structured, MBE-oriented approach to classify the type of harm, select the correct doctrine, and analyze duty, foreseeability, and proximate cause in complex negligence questions.

MBE Syllabus

For the MBE, you are required to understand negligence claims for intangible injuries and the limitations on recovery, with a focus on the following syllabus points:

Mental distress not arising from physical harm: when and how NIED is recognized.
Emotional distress as part of damages when physical injury or property damage occurs.
NIED frameworks: impact rule, zone of danger rule, and bystander recovery.
Bystander NIED: close relationship, contemporaneous perception, and presence at the scene.
Special-relationship NIED (e.g., medical providers, funeral homes, common carriers).
Pure economic loss in negligence and the general prohibition on recovery.
Economic loss rule in product and property damage cases.
Exceptions: professional negligence, negligent misrepresentation, and statutory carve-outs.
Causation and damage proof for emotional distress and economic loss.
Comparison of NIED with IIED and other emotional distress doctrines.
Treatment of relational economic loss (losses flowing from harm to another’s person or property).

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.

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?
1. Yes, because she suffered severe emotional distress.
2. Yes, because she is closely related to the victim and contemporaneously perceived the event.
3. No, because she was not within the zone of physical danger.
4. No, unless she also suffered some physical impact from the event.
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?
1. Yes, because the supplier's negligence directly caused the economic loss.
2. Yes, if the supplier could foresee that a power outage would cause economic losses to businesses in the park.
3. No, because the economic loss rule generally bars recovery for purely economic losses in negligence.
4. 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 sometimes allows recovery for intangible harms. The MBE blueprint treats two such categories as distinct topics:

Emotional distress not arising out of physical injury.
Pure economic loss that is not accompanied by physical harm or property damage.

The primary doctrines under this heading are Negligent Infliction of Emotional Distress (NIED) and the Economic Loss Rule. Both doctrines recognize that negligent conduct can cause real harm beyond physical impact, but they sharply limit when those harms are compensable in tort, largely to prevent indeterminate and disproportionate liability.

Key Term: Negligent Infliction of Emotional Distress (NIED)
A negligence-based claim allowing recovery for serious emotional distress caused by another's lack of due care, but only in narrowly defined situations (e.g., plaintiff was in the zone of physical danger, was a qualifying bystander, or stood in a special relationship to the defendant).

Key Term: Economic Loss Rule
A doctrine that generally bars negligence recovery for purely financial losses (such as lost profits or repair costs) when not accompanied by physical injury to person or property or by a separate duty independent of contract.

In terms of the overall damages picture, intangible harms mainly fall into the category of non-economic or general damages (such as pain, suffering, emotional anguish, and loss of enjoyment of life), as opposed to special or economic damages (such as medical expenses and lost wages). When a plaintiff proves a physical injury, both economic and non-economic items are usually available. When the only harm is intangible, courts impose extra gatekeeping rules to determine whether any duty exists to avoid that type of loss.

Two big exam themes run through this topic:

Emotional distress is readily recoverable as part of damages when there is physical injury or property damage; it is tightly controlled when it is the only injury.
Economic losses are readily recoverable as consequential damages flowing from physical harm; they are generally not recoverable when purely financial and unaccompanied by such harm.

Understanding this structure lets you recognize when the bar exam expects you to invoke NIED elements or the economic loss rule rather than treating the problem as an ordinary negligence case. It also helps you separate duty questions (does defendant owe a duty to protect against this type of intangible harm?) from causation and damages questions (did this defendant’s breach actually and proximately cause this plaintiff’s intangible loss?).

Exam Warning:
A common trap is to find duty, breach, and foreseeability and conclude “negligence established,” without ever considering that the type of harm (pure emotional or pure economic) may itself be outside the scope of negligence liability. Always classify the injury before you finalize your analysis.

The rest of this article develops the tools to answer those questions.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

NIED addresses emotional distress in negligence when there is no associated physical impact or injury, or when emotional distress is the primary harm. Historically, courts were highly skeptical of such claims, fearing fraudulent or trivial suits and difficulty in measuring damages. Modern law accepts that serious emotional injury is real but still uses gatekeeping rules to define a limited field of liability.

Different jurisdictions have adopted different combinations of rules. For MBE purposes, assume a modern majority approach (zone-of-danger and bystander recovery) unless the question explicitly tells you otherwise (e.g., “this jurisdiction retains the traditional impact rule”).

Emotional Distress as "Parasitic" Damages vs. Standalone NIED

When the plaintiff suffers physical injury or property damage, emotional distress damages are ordinarily recoverable as part of the negligence action without needing a special NIED doctrine. For example, a pedestrian hit by a car can recover for pain, suffering, and emotional distress as normal components of damages.

Key Term: Parasitic Emotional Damages
Emotional distress damages that are attached to (“parasitic on”) a primary physical injury or property damage claim; they are recoverable under ordinary negligence principles without satisfying special NIED rules.

Parasitic emotional damages also include:

Emotional distress from damage to one’s own property (e.g., terror and anguish watching your home burn due to a neighbor’s negligence).
Emotional suffering associated with physical recovery (e.g., disfigurement, permanent disability, fear of future medical problems).
Emotional loss tied to a family member’s physical injury when the plaintiff brings an independent derivative claim such as loss of consortium (see below).

These damages are subject to the usual causation and foreseeability limits, but there is no separate NIED hurdle to clear.

Some jurisdictions still limit emotional distress where the only physical effect is minimal or where the only harm is loss of property without any threat to personal safety. Others take a broader view and allow substantial emotional distress damages even when the bodily injury is modest, so long as a real physical impact occurred. The MBE typically does not test these fine variations; it focuses on whether there is any bodily or property injury sufficient to move the emotional distress component into the ordinary damages box, rather than into NIED.

By contrast, NIED rules apply when:

Emotional distress is the only claimed injury, or
The physical consequences are minor or derivative of the distress (e.g., insomnia, palpitations), rather than a direct physical impact.

Courts then use special gatekeeping rules (impact, zone of danger, bystander tests, or special-relationship doctrines) to decide which claims can go forward.

Key Term: Serious Emotional Distress
Emotional harm so severe that a reasonable person in the plaintiff’s position would be unable to cope with it; typically shown by persistent symptoms, functional impairment, and often the need for treatment or diagnosis, not mere transient upset.

Exam tip:

If you see significant physical or property damage to the plaintiff plus emotional distress, analyze the case as ordinary negligence and treat the emotional distress as part of damages.
If the only described harm is mental anguish, sleep disturbance, fear, anxiety, or similar, you likely need to analyze NIED under one of the special frameworks below.

Remember that parasitic emotional distress damages can be large. If a plaintiff is catastrophically injured, an award for pain and suffering, disfigurement, loss of enjoyment of life, and similar items may far exceed economic damages. The special NIED doctrines are about who can recover when there is no physical injury, not about capping emotional-damages amounts when physical injury exists.

The Historical Impact Rule

Under the traditional impact rule, a plaintiff could not recover for emotional distress unless there was some physical impact, however slight.

Key Term: Impact Rule
A traditional (now minority) approach requiring that the plaintiff suffer a physical impact—however minor—as a prerequisite to recovering for emotional distress caused by negligence.

The impact could be trivial (e.g., dust from a collision landing on the plaintiff), but the key was any contact. Courts used the impact requirement as a rough screening device, assuming that people actually touched by an accident were more likely to suffer genuine distress, and that physical impact made the harm easier to verify.

This approach has largely been abandoned in favor of more flexible tests, but a few jurisdictions retain a strict or modified version on the MBE.

In an impact-rule jurisdiction:

The requirement of impact itself often substitutes for a separate "physical symptoms" requirement.
The impact does not have to cause serious bodily injury; it simply must exist and be causally connected to the emotional distress.
Emotional distress must still be foreseeable and serious, not fleeting fright.

Some modern “modified impact” jurisdictions require:

A direct physical impact, plus
Some objective evidence of emotional distress (e.g., medical treatment, diagnosis).

On MBE-style questions, you will usually be told if a jurisdiction follows a strict impact rule. Otherwise, you should presume modern majority rules such as zone-of-danger or bystander recovery.

Because the impact rule can produce harsh results, exam questions in such jurisdictions often turn on whether some seemingly trivial contact counts as an impact (debris, jolt, touching plaintiff’s clothing, etc.). Read the facts carefully; if the question authors mention an object brushing against the plaintiff or the plaintiff being jolted, they may be signaling that the impact requirement is satisfied.

Worked Example 1.1

Driver negligently runs a red light and a glancing blow causes a grocery cart to hit Shopper’s leg. The impact leaves only a small bruise. Shopper later develops severe, medically documented anxiety about crossing streets. The jurisdiction follows a traditional impact rule.

Answer:
Shopper can likely recover for NIED. First, there is clear negligence: running a red light breaches the duty of reasonable care. Second, the jurisdiction’s key hurdle—the impact requirement—is satisfied because the grocery cart physically struck Shopper’s leg, even though the bodily injury (a minor bruise) was slight. The impact need not be serious; any contact caused by the negligent act is enough in an impact-rule jurisdiction. Third, Shopper’s emotional distress is described as severe and medically documented, indicating more than momentary fright. That satisfies the serious emotional distress requirement, and the distress is a foreseeable result of nearly being struck in traffic. Once these elements are met, the defendant is liable for the full extent of Shopper’s emotional harm under the eggshell plaintiff principle, even if her anxiety is more extreme than that of an average person. By contrast, a bystander across the street who experienced similar distress but no contact would be barred in this jurisdiction.

If the same jurisdiction confronted a bystander standing across the street, with no debris or contact at all, recovery would likely be barred despite severe distress.

The Zone of Danger Rule

Most modern jurisdictions allow recovery for NIED if the plaintiff can show:

Negligence: The defendant breached a duty of care.
Zone of Physical Danger: The plaintiff was within the area where the defendant's negligence created an immediate risk of physical harm.
Fear for Own Safety: The plaintiff experienced serious emotional distress from fearing for their own physical safety.
Serious Distress (often with physical symptoms): The emotional distress is severe; many jurisdictions additionally require some objectively verifiable physical symptom.

Key Term: Zone of Danger
The area within which a reasonable person would be placed at immediate risk of physical harm by the defendant's negligent conduct. Presence in this zone is a common prerequisite for NIED recovery when the plaintiff was not physically struck.

Key points and common exam nuances:

The threatened physical harm must be directed at the plaintiff’s person, not merely their property. Fear that one’s car or house will be damaged, standing alone, is usually not enough.
Merely being startled by witnessing an accident from a distance is insufficient if the plaintiff was not in actual physical danger.
Some courts use an objective standard: would a reasonable person in the plaintiff’s position believe they were in immediate physical danger?

For zone-of-danger claims, the plaintiff’s fear must be for their own safety. If a parent is standing safely on the sidewalk but fears only for a child in the street, zone-of-danger NIED is usually unavailable. The parent might still qualify under bystander NIED, discussed below.

Physical symptom requirement

Many zone-of-danger jurisdictions require some objective evidence of emotional distress, often physical symptoms such as:

Heart palpitations
Ulcers or gastrointestinal issues
Persistent headaches
Weight loss, tremors, or other diagnosable conditions
Formal psychiatric diagnosis (e.g., PTSD, anxiety disorder)

Other jurisdictions, influenced by modern psychiatry, permit recovery without physical symptoms if the emotional distress is clearly demonstrated by reliable evidence (e.g., expert testimony).

Key Term: Physical Symptom Requirement
A requirement in many NIED jurisdictions that emotional distress be evidenced by objective physical symptoms or medically verifiable conditions, used to screen out trivial or fabricated claims.

On the exam, if you see medical diagnosis, medication, counseling, or clear physical sequelae, you can safely assume the physical-symptom requirement is satisfied. If the question focuses on transient fright or momentary nervousness with no later effects, the requirement is probably not met.

Worked Example 1.2

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, Pedestrian should be able to recover. Begin with duty and breach: Driver owed a duty to operate the car with reasonable care and breached it by running the red light. Next, Pedestrian was directly in the zone of physical danger—a crosswalk in the path of a speeding car—and narrowly avoided being hit, so a reasonable person would fear imminent bodily harm. The distress Pedestrian felt was primarily a fear for his own safety, which is exactly what the zone-of-danger rule is designed to address. The ongoing nightmares and nervous tic, confirmed by psychiatric diagnosis, satisfy both the serious emotional distress and the physical symptom requirements in jurisdictions that demand objective proof. Finally, it is clearly foreseeable that a person nearly run down in a crosswalk would experience substantial anxiety and related symptoms. These facts fit squarely within the majority zone-of-danger NIED framework, so Pedestrian’s claim should succeed.

Bystander Recovery

The zone-of-danger rule still leaves out people who are not personally endangered but suffer serious distress from seeing a close family member injured. To address this, many jurisdictions recognize bystander NIED.

Key Term: Bystander Recovery
A doctrine allowing a plaintiff outside the zone of danger to recover for NIED when they witness a negligently inflicted injury to a close relative, provided specific relationship, presence, and perception requirements are met.

The majority "bystander recovery" rule typically requires:

Close Relationship:
- The plaintiff and the directly injured person must be closely related (usually spouse, parent, or child; some jurisdictions include siblings or grandparents in the same household).
- Casual friendships, dating relationships, coworkers, or distant relatives (e.g., cousins, in-laws) usually do not qualify, unless the question explicitly says the jurisdiction uses a broader standard.
Presence and Contemporaneous Perception:
- The plaintiff must be present at the scene of the injury-causing event or its immediate aftermath.
- The plaintiff must perceive the event as it unfolds, typically through their own senses (seeing or hearing the accident). Learning about it by phone, even moments later, generally does not suffice.
- Some courts allow perception of the immediate aftermath if the plaintiff arrives very soon and sees the injured relative in essentially the same condition as immediately after the accident.
Serious Emotional Distress (often with physical symptoms):
- The distress must be serious and of a kind that a reasonable person in the plaintiff's position would experience.
- Many jurisdictions still require physical symptoms; some do not if the distress is clearly established (e.g., through expert testimony).

Key Term: Bystander NIED
A form of NIED in which the plaintiff’s emotional harm arises from witnessing serious injury to a close relative, rather than from fear for the plaintiff’s own safety.

Some jurisdictions add an explicit foreseeability balancing test (originating in Dillon v. Legg), considering:

The proximity of the plaintiff to the accident.
How directly the plaintiff perceived the event.
The closeness of the relationship.

For the MBE, however, you can usually treat the bystander test as a bright-line rule built around close relationship + presence + contemporaneous perception + severe distress.

Note that the majority rule does not require the bystander to be in the zone of danger themselves. A spouse watching from a safe distance can recover if the other elements are satisfied.

Worked Example 1.3

Driver negligently crosses the center line and collides head-on with a car driven by Victim. Victim’s spouse is in a car immediately behind Victim and sees the collision occur, hears the impact, and rushes to the scene. Spouse was never herself in physical danger. She later develops severe depression and panic attacks. There are no physical injuries to Spouse apart from the consequences of her emotional distress. In a majority bystander jurisdiction, can Spouse recover for NIED?

Answer:
Yes. Start with the relationship element: Spouse and Victim are married, which is the classic “closely related” category. Next is presence: Spouse is immediately behind Victim’s car, actually watches the collision, and hears the impact—so she is at the scene and experiences the accident in real time. The contemporaneous perception requirement is clearly satisfied; she is not learning about the event later by phone or news. Although the facts state that Spouse “was never herself in physical danger,” that does not defeat recovery under the majority bystander rule, which does not require the plaintiff to be in the zone of danger when the other elements are present. Finally, the emotional harm is serious and medically documented (severe depression and panic attacks). That level of distress is a foreseeable result of watching one’s spouse suffer a head-on collision. Therefore Spouse falls within the protected class of bystander plaintiffs and should prevail on an NIED claim.

Worked Example 1.4

A man sees his coworker, with whom he is close friends but not related, struck by a negligently driven car. The man is standing safely on the sidewalk and is never in danger. He suffers intense emotional distress, leading to insomnia and weight loss. The jurisdiction follows the majority bystander rule. May he recover for NIED?

Answer:
No. The man plainly satisfies some elements: he is present at the scene, he contemporaneously perceives the injury, and he suffers serious emotional distress with physical manifestations (insomnia and weight loss). However, the majority bystander rule also requires that he be closely related to the directly injured victim in a legal sense. Close friendship with a coworker, however genuine, does not qualify as the type of familial relationship (spouse, parent, child, and sometimes sibling or grandparent) that most jurisdictions recognize. Courts adopt this relationship requirement precisely to draw a manageable line and prevent virtually anyone upset by an accident from suing. Because this element is missing, the man is outside the protected class of bystander NIED plaintiffs, and his claim fails even though the emotional response is real and foreseeable.

Presence and “immediate aftermath”

The presence requirement is another common testing point. Majority courts reject claims where:

The plaintiff arrives at the hospital hours later, even if they see the relative in a gruesome condition.
The plaintiff sees the wreckage but did not perceive the accident as it occurred and did not realize their relative was involved until later.
The plaintiff watches a video replay of the event but was not there in person when it happened.

A minority of courts are more flexible and may allow recovery if the plaintiff arrives in the “immediate aftermath” and sees the victim essentially as they were left by the accident (e.g., still at the scene, before substantial change in condition).

On the MBE, the facts will usually make clear whether the examiners intend the presence/perception requirement to be met or not. If the narrative emphasizes phone calls, hospital visits, or delayed notification, expect that the requirement is not satisfied.

Variations: Bystanders in Zone-of-Danger Jurisdictions

Some jurisdictions combine the tests by requiring that the bystander plaintiff:

Be within the zone of danger, and
Be closely related to the victim.

In these “zone-of-danger plus relationship” jurisdictions:

A bystander who is both personally endangered and closely related may recover for emotional distress stemming from:
- Fear for their own safety, and
- Emotional distress at witnessing injury to their relative.
A bystander who is closely related but not within physical danger will usually not recover.

MBE questions will typically specify this combined approach if it matters. If the question states only that the jurisdiction “follows the majority bystander rule,” assume the pure bystander rule (no personal endangerment required, but relationship and perception required).

Direct Victim NIED vs. Bystander NIED

Another way to organize NIED is to distinguish:

Direct victim NIED: Emotional harm arises from negligent conduct directly aimed at or directly affecting the plaintiff (often analyzed under zone-of-danger or special-relationship theories).
Bystander NIED: Emotional distress arises from witnessing injury to someone else.

Key Term: Direct Victim NIED
NIED in which the defendant’s negligence is directed at the plaintiff or a duty is owed specifically to the plaintiff, so the plaintiff’s emotional distress flows from the breach of that direct duty rather than from witnessing harm to a third party.

Many special-relationship cases (e.g., erroneous medical test results) are viewed as direct victim NIED, not bystander NIED, even though someone else’s condition (e.g., a fetus) may be involved.

On the exam, ask: “Is this person upset because of danger or negligence directed at them, or because of what happened to someone else?” That classification will often tell you whether to apply zone-of-danger, bystander, or special-relationship analysis.

Direct victim NIED most often arises in:

Medical or counseling settings (negligent test results, incorrect diagnoses).
Common carrier or innkeeper situations.
Handling of remains or sensitive information.

Bystander NIED is more likely in:

Traffic accidents.
Industrial or construction accidents.
Public disasters (e.g., explosions) where relatives are present.

Special Relationships and Circumstances

Even when the plaintiff is outside the zone of danger and not a bystander, courts sometimes allow NIED recovery based on a special relationship or a particularly sensitive context where serious emotional distress is especially foreseeable.

Key Term: Special Relationship (NIED)
A preexisting relationship or undertaking in which the defendant has a duty specifically aimed at protecting the plaintiff from emotional harm (not just physical harm), such that negligent performance foreseeably causes serious emotional distress.

Classic examples include:

Negligent Mishandling of a Corpse:
- Funeral homes, hospitals, and mortuaries owe close relatives a duty to handle bodies with care. Negligent mishandling (e.g., losing the body, mutilation, improper burial, switching bodies) allows recovery for emotional distress without zone-of-danger or bystander requirements.
- Courts recognize that people are uniquely vulnerable and emotionally invested in the handling of a loved one’s remains.
- Emotional distress is the core harm contemplated by the duty in this context.
Negligent Misinformation about Death/Serious Illness:
- Hospitals or medical providers who negligently report to a spouse or parent that a loved one has died, or who fail to notify of a death or serious illness, can be liable for NIED because emotional distress is a highly foreseeable result of such errors.
- Likewise, negligently delivered death notifications by police or other officials may support NIED in some jurisdictions.
- These are sometimes described as “death telegram” or “death message” cases in older opinions.
Medical Testing and Diagnosis Errors with Emotional Impact:
- Erroneously informing a patient that they tested positive for a serious disease (e.g., HIV or cancer), even if later corrected and with no actual physical harm, may support NIED because the provider undertook a duty to provide accurate information and severe emotional fallout is foreseeable.
- Conversely, negligent failure to diagnose or disclose a condition can cause emotional harm to a patient who later discovers that treatment opportunities were lost.
- Courts treat these as direct victim NIED claims: the duty runs from provider to patient, and emotional injury from erroneous information is a foreseeable consequence.
Common Carriers and Innkeepers:
- Some jurisdictions impose heightened duties on common carriers (e.g., airlines, trains) or innkeepers not to subject passengers or guests to extreme humiliation or distress; breach can support NIED claims.
- Examples include humiliating treatment, false accusations of theft, or abandonment in a dangerous location.
- Historically, courts allowed passengers to recover for fright or distress from rough or negligent handling even without physical injury.
Other Contexts:
- Negligently mishandling adoption information, such as misidentifying a child’s biological parents or history.
- Negligent transmission of telegraphs or messages concerning serious illness or death (older cases; concept now extends to modern communication errors where emotional impact is central).
- In some jurisdictions, mishandling of prenatal testing or genetic counseling (e.g., wrongful birth claims) may include a significant emotional-distress component.

These categories are often treated as exceptions to the usual zone-of-danger or physical-symptom requirements because the relationship and the nature of the service make emotional harm particularly foreseeable and serious.

Worked Example 1.5

A lab negligently mislabels a blood sample and informs a patient that she is HIV-positive. For three months, until the error is discovered, she experiences extreme anxiety, sleeplessness, and depression. She suffers no physical injury apart from the emotional consequences. The jurisdiction recognizes NIED claims based on special relationships. Can the patient recover?

Answer:
Yes. The lab is part of the medical testing system and thus has a special relationship with the patient grounded in professional obligations. That relationship includes a duty not only to avoid physical harm but also to avoid inflicting serious emotional harm through negligent reporting of grave diagnoses. Severe anxiety, insomnia, and depression are highly foreseeable reactions to being told one has HIV, so emotional distress is squarely within the scope of risk created by the lab’s carelessness. Because this is a direct victim situation—not a bystander—zone-of-danger and bystander rules do not apply. Instead, the special relationship itself furnishes the duty. The patient’s symptoms are serious and sustained over months, meeting any requirement of serious emotional distress; medical evidence would likely confirm this. Even without physical impact or threat of bodily harm, most modern courts would allow an NIED claim in this type of special-relationship scenario. The lab is therefore liable for the emotional distress caused during the period of misdiagnosis.

Fear of Future Illness and Toxic Exposure

A recurring exam pattern involves negligent exposure to a toxic substance (e.g., asbestos, chemicals) and the plaintiff’s fear of developing disease in the future.

Courts are divided, but common requirements for recovery include:

Actual exposure caused by the defendant’s negligence (not merely fear of exposure).
A significant increased risk of future illness, often proved by expert testimony.
A serious and reasonable fear resulting in substantial emotional distress.

Some jurisdictions require a present physical injury (however minor) or diagnosable condition, while others allow NIED recovery for serious emotional distress alone if the exposure and risk are real.

On the MBE, ask:

Is there present physical injury? If yes, emotional distress (including fear of cancer) is usually recoverable as parasitic damages.
If not, is there a clear NIED framework (zone of danger, bystander, or special relationship) that fits the facts? If not, recovery is unlikely.

Causation and Damages in NIED Cases

NIED is still a negligence claim, so the plaintiff must prove duty, breach, causation, and damages.

Duty and Breach:
- Duty is established by the applicable NIED framework: impact, zone-of-danger, bystander, special relationship, or a specific statutory duty.
- Breach is ordinary negligence—failure to act as a reasonably prudent person (or professional) under the circumstances.
Actual and Proximate Causation:
- The defendant's negligence must be the but-for cause of the emotional distress. Ask whether the plaintiff would have suffered that distress absent the negligent act.
- Proximate cause is usually analyzed using foreseeability: the emotional distress must be a reasonably foreseeable type of harm from the defendant's conduct.
- Emotional distress from narrowly escaping serious physical harm, or from being told of a loved one’s death, is generally foreseeable; bizarre or idiosyncratic emotional reactions may raise foreseeability issues.
Damages: Serious Emotional Distress:
- Emotional distress must be serious, not mere upset, anger, or transient fright. Courts look for:
  - Persistence over time.
  - Impact on daily functioning (work, relationships).
  - Need for treatment or counseling.
- Many jurisdictions require objective evidence—diagnosis, treatment, medication, or observable physical effects.
- Some allow recovery for reasonable fear of future illness (e.g., fear of developing cancer after negligent exposure), often requiring proof that:
  - The actual exposure or risk was real and caused by defendant’s negligence, and
  - The plaintiff’s fear is genuine and reasonable.

Key Term: Eggshell Plaintiff Rule
A principle that once a defendant is liable for some injury to the plaintiff, the defendant is responsible for all additional harm resulting from the plaintiff’s preexisting vulnerabilities, even if the harm is greater than a normal person would suffer.

Under the eggshell plaintiff rule, once the defendant’s negligence satisfies the NIED framework, the defendant takes the plaintiff as found. If the plaintiff has an unusually fragile emotional makeup or preexisting mental illness, the defendant is still liable for the full extent of the resulting emotional harm.

This matters on the MBE when:

Facts mention a prior mental health condition, anxiety disorder, or unusual susceptibility.
The defendant argues that the harm was greater than expected.

As long as some serious emotional harm was foreseeable, the defendant is liable for its full extent once duty and breach are established.

Defenses to NIED

Because NIED is a negligence claim, the usual negligence defenses apply.

Contributory or Comparative Negligence:
- The plaintiff’s own negligence in creating the dangerous situation can bar or reduce recovery.
  - Example: A plaintiff who knowingly ignores warning signs and walks into a dangerous area may share fault if exposed to danger and suffers NIED.
- In pure contributory negligence jurisdictions, any negligence by the plaintiff can bar recovery.
- In comparative negligence jurisdictions (pure or modified), the plaintiff’s recovery is reduced in proportion to their fault. Comparative fault applies even if the defendant’s conduct was reckless or wanton.

For MBE purposes, remember:

Comparative fault can reduce recovery even when the defendant’s conduct is reckless, but comparative fault is not a defense to intentional torts such as IIED.

Key Term: Assumption of Risk (for negligence)
A defense arising when a plaintiff knowingly and voluntarily encounters a known risk, thereby reducing or barring recovery in negligence.

Imputed Negligence:
- As a general rule, one person’s negligence is not imputed to another for purposes of contributory or comparative negligence, except in limited relationships (e.g., employer–employee, partners in a business).
- A child is not barred from recovery because a parent was negligent, and a spouse is not barred because the other spouse was negligent.

This rule can protect NIED plaintiffs (e.g., a child who suffers emotional distress when a negligent driver injures the child’s parent) from losing recovery because of a relative’s negligence.

Assumption of Risk:
- Applies when a party knowingly and voluntarily embraces a risk for some purpose of their own.
- Express assumption (e.g., written waiver) or implied assumption (e.g., choosing to participate in obviously dangerous activities) may bar or reduce recovery.
- If a risk of emotional harm is a normal part of the activity and obvious (e.g., participating in a haunted house attraction designed to frighten participants), courts may find that the plaintiff assumed that risk.
Statutes of Limitation and Discovery Rules:
- NIED claims are subject to standard personal injury limitations periods.
- Some jurisdictions apply a discovery rule for latent emotional injuries, starting the limitations period when the plaintiff knew or should have known that their emotional condition was caused by the defendant’s conduct.

NIED Versus Intentional Infliction of Emotional Distress (IIED)

It is important on the MBE to distinguish NIED from Intentional Infliction of Emotional Distress.

NIED:
- Mental state: negligence (or sometimes recklessness).
- Conduct: not necessarily “outrageous”; the focus is on duty frameworks (zone of danger, bystander, special relationship, impact).
- Often requires physical danger, physical symptoms, or particular categories of relationship or circumstance.
- Damages: serious emotional distress; physical symptoms often required.
IIED:
- Mental state: intentional or reckless (conscious disregard of a high probability that distress will result).
- Conduct must be extreme and outrageous, going beyond all bounds of decency in a civilized society.
- No requirement of physical danger or special relationship; the outrageousness of the conduct is the limiting principle.
- Severe emotional distress required; physical symptoms help but are not always required.

In practice on the exam:

If the defendant’s behavior is calculated to humiliate, terrorize, or emotionally injure the plaintiff (e.g., repeated threats, public degradation, cruel pranks), think IIED.
If the defendant is simply careless (e.g., negligent driving, misdiagnosis, administrative error), think NIED and ask whether a recognized NIED category applies.

A single fact pattern may support both theories (e.g., a reckless joke about a child’s death using a fake call to parents), but the mental-state facts will usually point you toward the intended doctrine for testing purposes.

Also remember:

Comparative fault does not apply to IIED.
Many traditional privileges (e.g., consent, self-defense) can still be raised as defenses to IIED when applicable.

Other Negligence-Based Emotional Distress Contexts

While NIED and IIED are the primary emotional-distress doctrines, a few related negligence contexts can appear:

Loss of Consortium:
- A spouse or, in some jurisdictions, a parent or child may recover for loss of companionship, affection, and sexual relations when a family member is physically injured by negligence.
- This is usually treated as a derivative claim attached to the primary physical injury, not as NIED, but the harm is largely emotional and relational.
- The derivative nature means that defenses against the injured party (e.g., contributory negligence) often extend to consortium claims.
Prenatal Emotional Distress:
- Parents may sue for emotional distress associated with negligent injury to a fetus or child in utero, often under wrongful birth or wrongful pregnancy theories.
- These claims typically rely on specific doctrines rather than the general NIED framework but illustrate courts’ willingness to compensate serious emotional harms in defined categories.
Survival and Wrongful Death Actions:
- Survival actions allow the decedent’s own cause of action to persist after death; wrongful death statutes create claims for relatives’ losses.
- Wrongful death damages usually focus on pecuniary loss to survivors (support, services), but some jurisdictions also allow recovery for grief or loss of society. This emotional component is not analyzed as NIED; it is governed by the statute.

On the MBE, emotional distress in these settings usually arises as part of damages in a broader negligence or medical malpractice question rather than as standalone NIED. The key is to recognize when the exam expects you to apply a special statutory or derivative claim versus the general NIED frameworks discussed above.

Worked Example 1.6

Parents sue a physician for negligently failing to diagnose severe genetic abnormalities in their fetus, alleging that they would have terminated the pregnancy had they known. The child is born with severe disabilities. The parents seek recovery for extraordinary medical expenses and for their own emotional distress. Their jurisdiction recognizes wrongful birth actions that permit recovery of both economic and emotional damages by parents. Does this require application of general NIED rules?

Answer:
No. This claim is governed by a specific wrongful birth doctrine recognized by the jurisdiction, not by the general common law of NIED. The statute or case law creating wrongful birth explicitly authorizes parents to recover both economic damages (extraordinary medical and care costs) and emotional distress damages associated with raising a severely disabled child when the physician’s negligent testing or counseling deprived them of an informed choice. Because the cause of action itself defines what damages are available, courts do not require parents to satisfy zone-of-danger, bystander, or impact requirements. Instead, the focus is on whether the physician owed and breached a professional duty, whether that breach caused the loss of reproductive choice, and whether the claimed damages fall within the wrongful birth remedy. On an MBE question, once you are told that wrongful birth actions are recognized and that emotional distress damages are included, you should treat emotional distress as parasitic to that specific cause of action, rather than as an independent NIED claim.

THE ECONOMIC LOSS RULE

The economic loss rule is a major limitation on negligence recovery for purely financial harms.

Key Term: Pure Economic Loss
Financial loss (such as lost profits, lost business opportunities, diminution in value, or repair costs) that is not accompanied by physical injury to the plaintiff’s person or damage to the plaintiff’s property.

The general rule in negligence is:

A plaintiff cannot recover purely economic losses resulting from the defendant's negligence unless there is:
- Physical injury to the plaintiff’s person, or
- Physical damage to the plaintiff’s property, or
- A special duty or relationship that independently supports liability for economic harm.

The policy rationale is to prevent limitless liability for ripple effects of negligent conduct. For example, a negligently caused power outage could economically affect thousands of businesses; allowing all to sue in tort would expose defendants to crushing and unpredictable liability that contract and insurance arrangements are better suited to handle.

Key Term: Consequential Economic Loss
Economic loss (e.g., lost wages or profits) that flows as a consequence of physical injury to the plaintiff’s person or property; generally recoverable in negligence.

The law distinguishes between:

Pure economic loss: financial harm alone (barred in negligence absent special duty).
Consequential economic loss: financial harm that stems from physical injury or property damage (usually recoverable).

Exam Warning:
Many answer choices will say that pure economic loss is recoverable if it was “foreseeable.” That is not the rule. Foreseeability matters only after you clear the threshold question: is this loss pure economic loss or consequential to physical harm?

Worked Example 1.7

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:
Probably not. Factory A clearly acted negligently in releasing the chemical plume, and its conduct is a but-for cause of Company B’s lost profits. The financial losses are also foreseeable—any reasonable person could anticipate that closing a major bridge would disrupt commerce. However, the economic loss rule focuses not on foreseeability, but on the nature of the harm. Company B’s only injury consists of financial losses; there is no bodily injury to its employees and no physical damage to its trucks, warehouse, or other property. These are therefore pure economic losses, which negligence law generally does not compensate absent a special duty. Allowing every business inconvenienced by a bridge closure to recover would create open-ended liability. Unless the facts describe some special relationship or statutory scheme (which they do not), Company B’s negligence claim is barred by the economic loss rule, and its remedy, if any, would lie in contract or insurance.

Contrast:

If the chemical plume directly damaged Company B’s trucks, or physically contaminated its warehouse, Company B could sue in negligence for repair costs and consequential lost profits while the trucks or warehouse are out of service.

Economic Loss as Consequential Damages

The economic loss rule does not bar all economic damages in negligence cases. Economic losses are recoverable when they are consequential to physical injury or property damage.

Examples of recoverable consequential economic loss:

Lost wages and future earning capacity following bodily injury.
Lost profits due to temporary closure of a physically damaged business premises.
Medical expenses, repair costs, and loss of use of damaged property.
Cost of substitute performance when property necessary for operations is physically damaged (e.g., renting replacement equipment while damaged machinery is repaired).

These are standard negligence damages because they are attached to physical harm to the plaintiff or the plaintiff’s property.

On the exam, if the plaintiff’s property or person has been physically harmed, think:

Ordinary negligence plus
Economic losses as part of the damages analysis, not an economic loss rule bar.

Economic Loss Rule in Products Cases

A significant application of the economic loss rule is in product liability.

In a typical commercial products scenario:

If a defective product causes:
- Personal injury or
- Damage to other property:
  the plaintiff may pursue tort remedies (negligence, strict products liability) and recover both physical and economic losses flowing from that harm.
If a defective product:
- Only damages itself (e.g., a turbine that fails and must be replaced, but damages nothing else), or
- Fails to perform as expected, causing purely economic losses (e.g., lost production, repair costs),
  the claim is usually limited to contract/warranty remedies. Negligence or strict liability claims are barred by the economic loss rule.

This approach is sometimes summarized as:

Injury to person or other property → tort allowed.
Injury to the product itself only → contract/warranty only.

The rationale is that commercial buyers can contractually allocate risks associated with a product not living up to economic expectations (e.g., warranty disclaimers, limitation-of-liability clauses), whereas tort law is reserved for protecting bodily integrity and other property.

Worked Example 1.8

A commercial bakery buys an industrial oven. Due to the manufacturer’s negligence, a component fails, and the oven is destroyed in a small fire. The fire is contained and does not damage any other property or injure anyone. The bakery loses two days of production and must replace the oven. May the bakery recover its replacement costs and lost profits in a negligence action against the manufacturer?

Answer:
Generally no, at least under the economic loss rule in products cases. The oven is the very product that the manufacturer supplied. When that product fails and destroys only itself, without harming any other property or people, the bakery’s losses—replacement cost of the oven and lost profits—are purely economic expectations about product performance. Tort law in this setting is limited to protecting against personal injury and damage to other property; contract and warranty law are the mechanisms for allocating the risk that a product will be defective or not worth its price. The bakery likely has warranty claims (e.g., implied warranty of merchantability) against the manufacturer, but absent damage to the bakery building or other property, negligence and strict liability are usually barred by the economic loss rule. If, however, the oven fire had spread and damaged the bakery’s premises, the bakery could seek tort damages for the building repairs and consequential lost profits.

Relational Economic Loss

Sometimes, a defendant’s negligence physically injures the person or property of one party, but causes purely economic losses to others who are indirectly affected.

Key Term: Relational Economic Loss
Purely financial loss suffered by a plaintiff as a consequence of physical injury to someone else’s person or property.

Examples:

A negligent oil spill damages ocean waters and some shoreline property; nearby businesses (e.g., hotels, fishermen without property damage) lose profits.
A negligently caused building collapse damages the building owner’s property; neighboring businesses not physically damaged lose income due to blocked access and safety closures.

Generally:

The directly injured party (whose person or property is harmed) can recover both physical and consequential economic losses.
Other parties who suffer only relational economic loss (lost profits without any injury to their person or property) are barred by the economic loss rule, absent a special duty or statutory remedy.

This is another expression of courts’ concern about limitless liability: allowing every business touched by the ripple effects of a disaster to recover would overwhelm defendants and courts.

Exceptions to the Economic Loss Rule

Although the economic loss rule is broad, several important exceptions and alternative pathways appear on the exam.

1. Special Relationships and Professional Negligence

Courts often allow recovery of pure economic loss where a special relationship creates a duty specifically aimed at protecting against financial harm. Common examples include:

Accountants and auditors
Attorneys
Architects and engineers
Investment advisors or brokers
Surveyors and title abstractors
Other professionals whose primary function is to supply information or specialized judgment that clients rely on for financial decisions.

In these contexts, the defendant’s role is to provide information or professional judgment on which the plaintiff reasonably relies. A negligently prepared audit, faulty legal opinion, or negligent investment recommendation that causes financial loss can support a negligence (or negligent misrepresentation) claim despite the absence of physical harm.

The key is an independent duty to protect against economic harm, arising from:

Professional standards of care, and/or
Contractual undertakings that courts treat as giving rise to tort duties.

Exam point:

When a professional’s negligence causes the client to lose money but suffer no physical harm, the economic loss rule does not automatically bar recovery; instead, analyze professional negligence or negligent misrepresentation.

Key Term: Professional Negligence (Economic Loss Context)
Negligent performance of professional services—often involving advice or information—where the professional owes a duty of care that includes protection against foreseeable economic loss to an identified or limited class of clients or users.

Key Term: Negligent Misrepresentation
A tort in which a defendant, usually in the business of supplying information, negligently provides false information that the plaintiff reasonably relies on, causing economic loss.

2. Negligent Misrepresentation

Many jurisdictions recognize a separate tort of negligent misrepresentation, particularly when:

The defendant is in the business of supplying information for the guidance of others in business transactions (e.g., accountants, real estate brokers, surveyors).
The defendant provides false information due to a failure to exercise reasonable care.
The plaintiff justifiably relies on the information in a transaction.
The plaintiff suffers pecuniary loss as a result.

Negligent misrepresentation allows recovery for pure economic loss because:

The duty is specifically about avoiding economic harm from bad information.
Liability is limited to a relatively small, identifiable class of persons whom the defendant intends or knows will rely on the information.

On an MBE question, if you see a professional report (e.g., an audit, survey, appraisal) supplied to a client or known third party that turns out to be wrong and causes financial loss, immediately consider negligent misrepresentation as a potential exception to the economic loss rule.

3. Private Nuisance and Property-Based Claims

Where the plaintiff has a property interest and the defendant’s negligence interferes with the use and enjoyment of that property, economic losses are often recoverable as part of a private nuisance or property-based negligence claim.

Key Term: Private Nuisance (Economic Loss Context)
A substantial and unreasonable interference with the plaintiff’s use and enjoyment of land that can support recovery of both non-economic (e.g., discomfort) and economic (e.g., lost business) damages tied to that property interest.

Examples:

A negligently operated factory emits fumes that make a neighboring restaurant unusable. The restaurant may recover for lost business because the nuisance interferes with the use and enjoyment of its premises.
Construction activity negligently blocks access to a store’s front entrance for an extended period. The store may recover lost profits if the interference with access substantially interferes with its property rights.

Because these claims are tied to the plaintiff’s property interest—not merely to general economic expectations—the losses are not treated as pure economic loss. Instead, the physical or quasi-physical interference with property rights opens the door to consequential economic damages.

4. Statutory Exceptions

Occasionally, statutes expressly allow recovery of economic losses without physical harm, for example:

Certain consumer protection statutes.
Securities laws.
Specific economic regulation schemes (e.g., oil spill compensation statutes).

On the MBE, you will be told if such a statute exists. In the absence of a statute or special relationship, assume the general economic loss rule applies and bars purely financial negligence claims.

5. Contractual Duties and the Economic Loss Rule

The economic loss rule is closely related to the boundary between contract and tort:

When the relationship between the parties is governed by a contract (e.g., buyer–seller, service provider–client), courts often hold that pure economic loss should be addressed through contract remedies—warranties, limitation of liability clauses, and negotiated risk allocation.
Tort duties, including negligence, are typically limited to preventing physical harm to person or property and certain special categories of economic harm.

Thus:

A commercial buyer whose product fails and causes only repair and downtime costs typically must sue for breach of warranty, not negligence.
A homeowner whose house is negligently constructed and cracks may sue in negligence because the defective work has caused property damage to the home, not merely disappointed economic expectations.

Revision Tip:
When you see two contracting parties and the only harm is that one side got a bad bargain or paid for something that did not work as promised, think “contract/warranty” first and apply the economic loss rule to screen out negligence claims.

Exam tip:

When you see a dispute between parties to a contract complaining about poor performance that caused financial loss but no physical harm, ask whether the economic loss rule pushes the claim into contract rather than tort.

Worked Example 1.9

A developer hires an engineer to prepare a soil report for a new office tower. The engineer negligently certifies that the soil is stable, when in fact it is not. Relying on the report, the developer builds the tower. The soil later shifts, causing large cracks in the building’s supporting structure and walls. No one is injured, but the building is physically damaged, and the developer incurs substantial repair costs and lost rental income. Can the developer recover in negligence?

Answer:
Yes. The engineer owed the developer a professional duty of care in preparing the soil report. The engineer breached that duty by negligently certifying stability. The negligent certification is an actual and proximate cause of the resulting harm because the developer relied on the report in deciding to build, and soil instability is precisely the risk that a proper report is supposed to address. Crucially, the harm here is not merely disappointed economic expectations; the shifting soil caused physical damage to the developer’s building (cracks in the structural components and walls). Once there is damage to the plaintiff’s property, the economic loss rule no longer bars negligence recovery, and the developer may recover both the cost of repairs and consequential economic losses such as lost rental income while the building is being fixed. This case therefore falls on the “property damage” side of the economic loss line, not the “pure economic loss” side, and negligence is a proper theory of recovery in addition to any contractual claims.

Worked Example 1.10

An accounting firm prepares an audit report for its corporate client, knowing that the client will show the report to a specific bank to obtain a loan. The firm carelessly overstates the client’s assets. Relying on the report, the bank makes a large unsecured loan and later suffers a substantial loss when the client defaults. The bank sues the accounting firm in negligence for its purely economic loss. There is no physical harm to person or property. Does the economic loss rule bar the bank’s claim?

Answer:
Likely not, if the jurisdiction follows the common approach to negligent misrepresentation and professional liability. Ordinarily, the economic loss rule would bar a negligence claim for purely financial loss unaccompanied by personal injury or property damage. But professionals who supply information for the guidance of others in business transactions—such as accountants—may owe a duty not only to their clients but also to a limited, specifically foreseeable class of third parties who they know will rely on their work. Here, the accountants knew their report would be shown to this particular bank for the purpose of obtaining a loan. That knowledge creates a special relationship with the bank for this transaction. The firm’s careless overstatement of assets is a breach of its duty of care. The bank’s reliance on the report in making the loan is reasonable and is the but-for and proximate cause of the bank’s financial loss when the client defaults. Under the negligent misrepresentation exception to the economic loss rule, the bank can recover its purely economic loss against the accounting firm, even in the absence of physical harm.

Economic Loss and Emotional Distress Together

Sometimes a fact pattern will involve both economic loss and emotional distress without physical harm—for example, a negligent bank error that wipes out a savings account, causing severe emotional upset.

The economic loss rule will generally bar recovery for the financial loss in negligence.
NIED will typically not apply either, because there is no zone-of-danger, bystander event, or recognized special relationship for emotional distress in that context (a bank–customer relationship, by itself, is usually not enough).
Emotional distress arising from breached economic expectations alone (e.g., losing a job or investment due to another’s negligence) is usually not compensable in negligence.

In such cases, the plaintiff is usually limited to contract or statutory remedies, not tort. A separate intentional tort—such as intentional misrepresentation—might be available if the mental state and elements are satisfied, but ordinary negligence plus economic and emotional harm will not suffice.

Comparative Negligence and Defense Issues in Economic Loss Cases

Because economic loss claims that survive the rule are typically grounded in negligence or professional malpractice, ordinary defenses apply:

Comparative negligence can reduce recovery when the plaintiff’s own carelessness contributed to the loss (e.g., relying on obviously incomplete financial statements, ignoring clear red flags in an investment).
Assumption of risk can arise when a plaintiff knowingly enters an unusually risky financial arrangement (though many courts treat this as part of comparative fault).
Mitigation of damages: Plaintiffs must take reasonable steps to limit further economic harm once they are aware of the problem (e.g., moving funds after learning of a broker’s negligence).

These defenses are rarely the primary focus of an MBE economic loss question, but they can appear as one wrong answer choice (e.g., blaming the plaintiff’s failure to mitigate rather than the economic loss rule). Keep the hierarchy clear:

First, ask whether the economic loss rule bars the claim.
Only if the claim survives, consider comparative negligence and mitigation.

Summary

Recovery in negligence for intangible injuries—emotional distress and pure economic loss—is exceptional, not routine. The law uses targeted doctrines to ensure that liability stays within manageable boundaries.

For NIED:

Emotional distress damages arising from physical injury or property damage are freely recoverable as parasitic damages.
Standalone NIED claims are strictly controlled. The main frameworks are:
- Impact rule (minority): requires some physical contact as a prerequisite for emotional distress recovery; the impact can be slight but must be causally linked.
- Zone of danger: plaintiff was personally endangered by negligence and suffered serious emotional distress (often with physical symptoms).
- Bystander recovery: plaintiff was closely related to the victim, present at the scene, contemporaneously perceived the event, and suffered serious distress.
- Special relationships and circumstances: duties aimed at emotional well-being (e.g., mishandling corpses, erroneous death or serious illness information, certain medical testing errors, common carriers) can support NIED without physical danger.

For causation and damages in NIED:

The emotional distress must be a foreseeable result of the negligent conduct.
Distress must be serious; many jurisdictions require objective proof or physical signs such as diagnosis or persistent physical symptoms.
Under the eggshell plaintiff rule, once NIED liability is established, defendants are liable for the full extent of the plaintiff’s emotional harm, even if unusually severe.

For defenses:

Ordinary negligence defenses, including contributory/comparative negligence and assumption of risk, apply to NIED.
Comparative fault is not available as a defense to intentional emotional distress claims (IIED).

NIED must be distinguished from IIED:

NIED involves negligent conduct limited by special frameworks and often requires physical danger or special relationships.
IIED involves intentional or reckless conduct that is extreme and outrageous, has a different mental state, and does not use zone-of-danger or bystander limitations.

For pure economic loss:

The economic loss rule generally bars negligence claims for pure economic loss unaccompanied by physical injury to person or property.
Economic losses are recoverable as consequential damages when they flow from physical injury or property damage.
In product cases, tort remedies are available for personal injury or damage to other property, but pure failure of the product itself and associated lost profits are usually limited to contract/warranty.
Relational economic loss (purely financial loss resulting from injury to someone else’s person or property) is generally not recoverable in negligence.
Exceptions to the economic loss rule include professional negligence, negligent misrepresentation, property-based claims like private nuisance, and specific statutory carve-outs.
When both emotional distress and economic loss appear without physical harm, courts usually bar both recovery for pure economic loss and NIED unless a recognized exception or special relationship applies.

Emotional distress and economic loss doctrines interact with broader negligence principles of duty, foreseeability, proximate cause, and defenses, and must be integrated into a complete negligence analysis on MBE fact patterns.

Key Point Checklist

This article has covered the following key knowledge points:

Emotional distress damages are routine when parasitic on physical injury or property damage; standalone NIED claims are limited by special frameworks.
The impact rule (minority) requires physical contact as a prerequisite for emotional distress recovery; the impact can be slight but must be causally linked to the emotional harm.
Under the zone of danger rule, a plaintiff personally endangered by negligence and suffering serious distress (often with physical symptoms) may recover for NIED.
Bystander recovery allows NIED claims for plaintiffs outside the zone of danger if they are closely related to the victim, present at the scene, contemporaneously perceive the event, and suffer serious distress.
Some jurisdictions combine zone-of-danger and bystander elements, requiring both personal endangerment and close relationship for NIED.
Direct victim NIED involves emotional harm arising from negligence directed at the plaintiff or a duty owed specifically to the plaintiff, often in professional or special-relationship contexts.
Special-relationship and special-circumstance cases (e.g., mishandling of corpses, erroneous death or serious illness information, medical testing errors, and some common-carrier obligations) can support NIED without physical danger or impact.
Many NIED jurisdictions impose a physical symptom requirement, demanding objective signs or medical evidence of serious emotional distress.
NIED still requires proof of duty (via a recognized framework), breach, causation, and serious emotional damages; ordinary negligence doctrines on factual and proximate cause apply.
Under the eggshell plaintiff rule, once NIED liability is established, defendants are liable for the full extent of the plaintiff’s emotional harm, even if unusually severe or aggravated by preexisting conditions.
Ordinary negligence defenses, including contributory/comparative negligence, rules against imputed negligence, and assumption of risk, apply to NIED claims.
NIED must be distinguished from IIED, which involves intentional or reckless outrageous conduct, has different mental-state and conduct requirements, and does not rely on zone-of-danger or bystander limitations.
The economic loss rule generally bars negligence claims for pure economic loss unaccompanied by physical injury to the plaintiff’s person or property.
Consequential economic loss (such as lost wages or profits flowing from physical damage to person or property) is recoverable in negligence; pure economic loss is not, absent a special duty or statutory authorization.
In product cases, tort remedies are available for personal injury or damage to other property, but pure failure of the product itself and associated lost profits are usually channeled into contract or warranty claims.
Relational economic loss (pure financial loss resulting from injury to someone else’s person or property) is generally not recoverable in negligence because of concerns about unlimited liability.
Professional negligence and negligent misrepresentation create exceptions to the economic loss rule where the defendant is in the business of supplying information and owes a duty to protect against financial loss to a limited class of foreseeable users.
Property-based claims such as private nuisance allow recovery for economic losses linked to interference with the plaintiff’s use and enjoyment of land, even when the harm is largely financial.
When both emotional distress and economic loss appear without physical harm, both are usually barred under NIED and the economic loss rule unless a recognized NIED category, professional relationship, or statute brings them within tort liability.
Intangible injury doctrines must be integrated into negligence analysis by first classifying the harm (emotional vs. economic; parasitic vs. standalone) and then applying the appropriate duty and damages limitations.

Key Terms and Concepts

Negligent Infliction of Emotional Distress (NIED)
Economic Loss Rule
Parasitic Emotional Damages
Impact Rule
Zone of Danger
Bystander Recovery
Bystander NIED
Direct Victim NIED
Special Relationship (NIED)
Serious Emotional Distress
Physical Symptom Requirement
Eggshell Plaintiff Rule
Assumption of Risk (for negligence)
Pure Economic Loss
Consequential Economic Loss
Relational Economic Loss
Professional Negligence (Economic Loss Context)
Negligent Misrepresentation
Private Nuisance (Economic Loss Context)

Negligence - Other intangible injuries