The tort of negligent infliction of emotional distress is a controversial legal theory and is not accepted in many United States jurisdictions. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a claim. The tort was embraced by certain legal theorists and jurisdictions in the latter part of the twentieth century.
Criticisms of the Tort
The tort is generally disfavored because it appears to have no definable parameters and the potential claims that can be made under the theory are wide open. It is difficult to define what situations would give rise to such a claim, and what situations would not. Due to this substantial uncertainty, most legal theorists find the theory to be unworkable in practice.
An additional criticism of the tort is that it leads to abuse of insurance liability coverage. Most insurance liability policies provide for coverage of negligently inflicted injuries but exclude coverage of intentionally inflicted injuries. If an victim is intentionally injured by an actor, many theorists perceive that the victim will tend to recast the claim as being one for negligence in order to fall within the coverage of the insurance policy. The Texas case of Boyles v. Kerr , 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress. On appeal, the Texas Supreme Court observed that the facts did not support a claim of negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain insurance coverage. The Court then went onto to hold that Texas did not recognize a claim for negligent infliction of emotional distress and remanded the case to the trial court for consideration of a claim for intentional infliction of emotional distress.
Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow recovery for emotional distress where such distress:
- is inflicted intentionally (i.e., intentional infliction of emotional distress)
- is directly associated with a physical injury negligently inflicted upon a victim (e.g., emotional distress resulting from a loss of limb or disfigurement of the face)
- is caused by defamation and libel;
- stems from witnessing a gruesome accident as a bystander
- is the product of some misconduct universally recognized as causing emotional distress such as mishandling a loved one's corpse or failing to timely delivery a death notice.
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