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When you are in an accident, you may think that seeking compensation for your injuries is limited to your out-of-pocket expenses. It may not cross your mind to request relief for the mental or emotional pain that you experienced due to the incident.
In many jurisdictions, including Nevada, you may be eligible to recover damages for emotional distress.
The personal injury attorneys at Kidwell & Gallagher would like to walk you through the requirements for negligent infliction of emotional distress and how they may pertain to you.
Emotional distress is defined as “a highly unpleasant mental reaction that results from another person’s conduct; emotional pain and suffering.”
Negligent infliction of emotional distress (NIED) is a tort, or civil wrong, that causes a plaintiff harm. With an NIED claim, a plaintiff is alleging that he or she has endured shock or trauma as a direct result of another person’s conduct.
NIED often affects a person’s ability to lead a normal life. Unlike other personal injury damages, a person can bring a claim against another party just seeking recovery for NIED alone; it is not required that other claims are brought against the defendant.
Anytime a victim brings a specific claim against the defendant, they must satisfy certain requirements in order to collect damages. The emotional distress must stem from physical injuries or manifest itself as physical symptoms, such as sleeplessness or a loss of appetite.
For an NIED tort, the defendant must have acted negligently, causing an accident or injury. Simply stated, a person is negligent if they have a duty to practice a certain level of care and they breach that duty, causing another person harm.
Each party will be assessed on what degree of fault they hold in an accident. Each state functions differently on how they handle liability. Nevada follows the doctrine of comparative negligence. The law states that a plaintiff cannot recover damages if they are found to be more than 50% at fault for an accident.
In Nevada, the following persons can bring a lawsuit for negligent infliction of emotional distress:
These NIED principles have been developed through case law, also known as “common law”:
The Impact Rule
As a result of the defendant’s negligent behavior, the plaintiff must have experienced an actual physical impact or touching.
The “impact” can be minor. In one case, the victim getting dust in their eye satisfied the impact rule.
Zone of Danger Rule
In the zone of danger rule, a bystander can only recover damages for harm inflicted on a close relative if the defendant’s actions also put the bystander in danger of physical harm.
The Dillon Rule
Also referred to as the “foreseeability” test, this rule implies that the defendant should have been able to foresee that his or her actions would cause the plaintiff emotional distress.
“Foreseeability” is a requirement of all negligence cases. If the harm was not foreseeable, then the defendant will likely not be held liable for the plaintiff’s injuries.
Additionally, the defendant must not have only caused the injuries to the plaintiff but be the primary reason for the victim’s injuries.
Bystanders can recover financially for NIED in certain circumstances. As stated in Dillon v. Legg, 68 Cal. 2d 728 (1968), the victim must prove that he or she:
In our legal system, we get used to compensating people for missed time from work and medical expenses. We tend to forget that the mental and emotional toll that someone experiences following an accident can have equally devastating effects on their well-being.
At Kidwell & Gallagher, we understand that trying to become “whole” following an injury can be a long process. Contact us today to schedule your free consultation and discuss your case with an attorney.