Outline of Theories of Recovery for Emotional Distress

In addition to direct intentional infliction of emotional distress (DIIED)

as represented by the Siliznof and Hall v. May Department Store cases there
are three other theories concerning recovery for emotional distress:
bystander intentional infliction of emotional distress (BIIED); direct negligent
infliction of emotional distress (DNIED); and bystander negligent infliction of
emotional distress (BNIED). All three of these theories are developing areas
of the law. Since they involve purely emotional harm courts have been
reluctant to allow recovery because of fears of fraud, triviality of the injury
and overloading the courts with claims. Today most jurisdictions allow
recovery under each of these theories in limited situations but the tests
courts apply vary widely.
1.

Bystander Intentional Infliction of Emotional Distress

This claim is made by a plaintif who sufers purely emotional distress

as the result of witnessing defendant committing an intentional tort on
someone else. For example, someone who is present and sees another beat
up or kill a third party can allege bystander intentional infliction of emotional
distress. The most widely followed test is section 46(2) of the Restatement
(Second) which I paraphrase as follows:
Recovery is allowed if (a) an extreme and outrageous intentional tort is
committed against a third party; and (b) plaintif is present and witnesses the
commission of this tort; and (c) either (i) plaintif is an immediate family
member or (ii) plaintif sufers bodily harm.
You are not responsible for this kind of emotional harm injury for exam
purposes.
2.

Direct Negligent Infliction of Emotional Distress

Where emotional harm is sufered as a direct result of defendants

conduct but plaintif is unable to prove that defendant acted intentionally or
even recklessly, courts sometimes allow recovery where defendant is shown
to have acted negligently. The typical cases are quite morbid; they involve
negligent transmission of a telegram announcing someones death or the
negligent mishandling or a corpse. One recent related case involved the
following facts: Plaintifs mother had been a patient in defendant hospital for
ten years. A person with the mothers same name, Emma Johnson, died in
the hospital and the hospital pulled the wrong file and notified plaintif of her
mothers death. As a result plaintif didnt discover that she was burying the
wrong person until she viewed the corpse during the funeral proceedings.
Plaintif sued the hospital for negligent infliction of emotional distress and
was allowed to prevail.
Courts apply the following tests in deciding whether to allow direct
negligent infliction of emotional distress:

a. Impact test the old rule still followed by a minority of jurisdictions

denies recovery for purely emotional distress unless the individual also
sustained immediate physical impact examples of physical impact
range from fainting and hitting the floor to being splattered by blood.
b. Physical consequences the present majority rule denies recovery for
purely emotional distress unless the individual also sufers some
physical harm or physical manifestations examples range from heart
attacks to throwing up.
c. Emotional distress plus some independent basis for liability ((same as
infringement of a separate legally protected interest (Oregon)?
Probably so)) this is the rule quoted in Prosser & Keetons hornbook
on p. 361 and may be what we do in Oregon based on the discussion of
negligent infliction of emotional distress in Hammond. See infra.
d. Emotional distress plus other indicia of genuineness and seriousness
this is the modern trend what is meant by this is that the action will
be allowed if there was impact, or physical manifestation or
outrageous conduct or the facts are sufficiently shocking to in
themselves provide indicia of the genuineness and seriousness of the
alleged injury.
e. Foreseeable emotional distress - some commentators propose that
this be the test which is the test for negligence that causes physical
injury if this is the test there is no need to have a separate action
called negligent infliction of emotional distress; it is subsumed in the
usual negligence action.
3.

Bystander Negligent Infliction of Emotional Distress

This form of action is on the cutting edge of the law and the tests
courts apply for deciding whether to allow it are in a state of flux. The classic
example of bystander negligent infliction of emotional distress arises when a
parent witnesses a motorist negligently run over her/his child and sues for
the emotional distress she/he sufered as a result of witnessing this tragedy.
See Prosser & Keeton pp. 365-366. Where bystander negligent infliction of
emotional distress is alleged courts apply on of four tests.
a) Impact test the old rule followed by a shrinking minority of
jurisdictions denies recovery unless immediate physical impact can
be shown.
b) Zone of danger test this is the majority rule and Restatement
(Second) Section 313 rule it allows recovery for plaintifs within the
zone of risk of physical harm under this test plaintif can recover if
she can show that the car that hit her child just missed hitting her.
c) Thing v. LaChusa, 771 P. 2d 814 (Cal. S. Ct. 1989), threshold
requirements for recovery test similar requirements have been
treated as thresholds in a number of other states in order to recover,

persons claiming bystander negligent infliction of emotional distress

must show:
1.
they witnessed the accident;
2.
they were closely related to the physically injured person;
and
3.
they sufered emotional distress beyond that which would
be expected in a disinterested witness
d) Dillon v. Legg, 441 P. 2d 912 (Cal. S. Ct. 1968) foreseeability test this
test has been adopted by a number of other jurisdictions and is the
most liberal of the tests applied under this test persons claiming
bystander negligent infliction of emotional distress can recover if the
distress was foreseeable foreseeability is determined by considering
certain factors, none of which is always determinative the factors are:
Show 1.
How close they were located to the accident;
2.
how direct the emotional impact was did they witness
the accident or arrive soon after or even later;
3.
Whether they are closely related to the accident victim,
and if so, how close.
This test is somewhat flexible in contrast to the rigid threshold requirements
in Thing, the case which overruled Dillon in 1989. See (c) above. The Dillon
test is the only test which may allow recovery even if the plaintif did not
witness the accident.
Summary of Bystander Liability
Courts that allow liability where plaintif has witnessed either negligent
or intentional physical harm to another have three major areas of
disagreement:
1.
2.
3.

what is the necessary relationship between the witnessing

plaintif and the person physically harmed?
where must the witnessing plaintif be located in relation to the
person who was physically injured? They must be present but
how close?
Must the plaintif have sufered some physical consequences as
a result of the witnessing the physical injury to another? If so,
how serious must those consequences be?
Oregon Negligent Infliction of Emotional Distress Rules

Oregons rules regarding negligent infliction of emotional distress are

confusing and uncertain. In 1991 the Oregon Supreme Court decided the very
problematic case of Hammond v. Central Lane Communications Center, 312
Or. 17 in which it appeared to hold that, whether the negligent infliction of
emotional distress be of the direct or bystander type, the only bases for
recovery would be that the plaintif was physically injured; or defendants
conduct infringed on some legally protected interest apart from causing the
claimed distress.

The Hammond facts were not attractive ones for either a direct
negligent infliction or a bystander negligent infliction claim and it is not clear
whether the court treated it as one or the other or both. The plaintif in
Hammond placed a call to defendants 9-1-1 emergency communications
system after she awoke to find her husband lying on the kitchen floor.
Plaintif told the operator that her husband was not breathing, had no
apparent pulse, was cold to the touch, and bluish in color. The operator
concluded that plaintifs husband was dead and dispatched the call to the
Oregon State Police as a nonemergency deceased person call. The deputy
arrived at plaintifs house 45 minutes after the 9-1-1 call, during which time
the plaintif heard her husband make rasping breathing sounds. Plaintifs
husband was dead when the deputy arrived.
Plaintif sued defendant for negligent infliction of emotional distress
and claimed she was a direct, not a bystander, victim of defendants
negligence in causing the police to treat this as a nonemergency call. The
Oregon Supreme Court addressed the issue of the standard to be applied
when negligent infliction of emotional distress is alleged, noting that plaintif
alleged she was a direct victim of defendants negligence but rejected her
claim that there was a contractual relationship between herself and the
defendant. It was not clear whether, by rejecting the contract theory, the
court also rejected her claim that she was a direct victim. However, in a
paragraph in which the court notes her claim is as a direct victim, the court
said that a prerequisite to liability was the violation by defendant of some
legally protected interest.
The next paragraph in the opinion addresses Oregon bystander case
law and notes that Oregon follows the impact rule for bystander liability.
However, by impact, the court appears to mean immediate physical injury.
The court said: Viewing the record in the light most favorable to plaintif, we
conclude that plaintif may not recover for defendants alleged negligence,
because she sustained no physical injury.
In justifying this holding regarding negligent infliction of emotional
distress the court noted it was bound by precedent, a 1914 case, Adams v.
Brosius, 69 Or. 513, which had facts quite similar to those in Hammond. The
problem is that the court still doesnt tell us whether it views Hammond (or
Adams) as a direct or a bystander case.
For now it appears that the rule in Oregon for both direct and
bystander negligent infliction of emotional distress is that one of the following
must be satisfied. EITHER:
1.
The impact rule must be satisfied, which in Oregon means some
(immediate?) physical injury . But Court doesnt say how much is enough. Is
a bruise or a scratch enough? How about fainting? Prior court of appeals
decisions have held that a blood transfusion resulting in a change in blood
was an impact; also, a blow to the abdomen of a pregnant woman was an
impact.

OR
2.
The plaintiff must show that defendants conduct infringed
some legally protected interest apart from the emotional distress.
Previously recognized separate legally protected interests include a police
officers failure to arrest a batterer who violated a restraining order when the
statute said shall arrest (the battered woman was able to recover against
the officer for purely emotional harm); negligent delivery of a childs passport
to one parent, in violation of court order, which resulted in the child being
removed from the USA (the father was able to recover against his ex-wifes
attorney for purely emotional harm); invasion of privacy; unauthorized
removal of a spouses remains; and private nuisance.
All the previous Oregon Supreme Court cases have involved direct
negligent infliction of emotional distress. The only clear bystander cases in
Oregon have been decided by the intermediate court of appeals using the
impact test.
If you need to argue negligent infliction of emotional distress in Oregon
you will need to show either some direct impact (meaning physical injury of
some sort) or an infringement of a separate legally protected interest. What
either of these requirements actually means is not at all clear. Obviously if
the plaintif can show that defendant negligently caused him/her physical
injury there should be no need for a separate negligent infliction of emotional
distress claim; instead the suit would be for just plain negligence and would
include damages for pain and sufering and other emotional harm so what
does Oregons impact rule add to ordinary negligence?