Suing For Negligent Infliction Of Emotional Distress In The State Of New York

In the majority of U.S. states, including New York, it is possible to sue for emotional distress. There are two types of infliction of emotional distress claims:

Origin of the Claim

The claim of negligent infliction of emotional distress originated and evolved in New York courts. The claim arose from cases such as Smith v. City of New York and Greene v. Esplanade Venture Partnership as opposed to a statute created by the New York State Legislature. In New York and other states, a great deal of personal injury law is derived from such “judge-made law.”

Two Theories of Liability for Negligent Infliction of Emotional Distress

New York recognises two distinct methods for establishing liability for negligent infliction of emotional distress. Each claim requires proof of a different set of facts.

In order to prevail under the direct duty theory of liability, the plaintiff (the person who filed the lawsuit) must prove the following elements:

  • The defendant owed the plaintiff a duty of care.
  • This obligation could be as simple as the obligation to drive carefully on public roads or as complex as the obligation of a surgeon to perform surgery competently.
  • The defendant failed to exercise reasonable care (by driving recklessly, for example).
  • The breach of the defendant’s duty of care posed an unreasonable risk to the plaintiff’s physical safety or caused the plaintiff to fear for his or her own physical safety.
  • The behaviour of the defendant was outrageous and extreme (more so than mere negligence).
  • The behaviour of the defendant caused the plaintiff to experience extreme emotional distress.

To win, you must prove each of the preceding elements “more likely than not.” This standard is significantly less stringent than the “beyond a reasonable doubt” standard utilised in criminal prosecutions.

The bystander/zone of danger theory is a second method for recovering damages for negligent emotional distress infliction. The following are the elements of the claim according to this theory:

  • The defendant subjected an immediate relative of the plaintiff to unnecessary physical harm.
  • The family member died or was severely injured.
  • The death or serious injury of the family member was the result of the defendant’s unreasonable behaviour.
  • The plaintiff witnessed the serious injury or death of a family member.
  • The plaintiff was within the danger zone of the accident or incident that caused the injury or death of a close relative.
  • The plaintiff experienced extreme psychological distress.

New York is one of only a handful of states that applies the “zone of danger” rule to certain claims of negligent infliction of emotional distress. For the “zone of danger” rule to be satisfied, the plaintiff must demonstrate:

  • There was a real possibility that the plaintiff could have suffered a severe injury or died as a result of the incident that killed their relative.
  • The plaintiff was aware of the death or severe injury of a close relative at the time it occurred.
  • The “immediate relative” was a parent, child, sibling, or grandchild of the plaintiff.

The New York courts have not yet determined whether a grandparent can qualify as the plaintiff’s “immediate relative.”

Seek Legal Advice to Help You Win This Controversial Claim

Some judges are comparatively hostile towards claims of negligent infliction of emotional distress. They likely believe that this claim unreasonably increases potential liability in a personal injury case. You likely need a New York personal injury attorney to help you win your claim for negligent infliction of emotional distress for this and other reasons.

Contact Our Personal Injury Law Firm

Contact Abrams Law Group for a free consultation if you’ve been hurt in an accident and require legal assistance.

Abrams Law Group
104-70 Queens Boulevard, Suite 502
Forest Hills, NY 11375
(718) 997-9797

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