Negligence - Claims for mental distress not arising from phy...

Learning Outcomes

This article explains negligence claims for mental distress not arising from physical harm, including:

• The traditional bar on recovery for pure emotional harm in negligence and how modern NIED doctrines carve out narrow exceptions.
• When a plaintiff may recover for emotional distress in negligence without accompanying physical injury, focusing on zone-of-danger, bystander, and special-relationship frameworks.
• The precise elements of direct-victim NIED under the zone-of-danger rule, and how to evaluate whether a plaintiff was actually placed in immediate risk of physical harm.
• The majority test for bystander NIED, including close familial relationship, presence at the scene, contemporaneous perception, and serious distress supported by physical symptoms.
• The physical-symptom requirement, recognized exceptions in sensitive contexts (corpse mishandling, erroneous death notifications, negligent medical information), and how different jurisdictions treat this element.
• How NIED interacts with other negligence limits such as the rule against pure economic loss, and how to distinguish NIED from wrongful death, survival, loss-of-consortium, and intentional infliction of emotional distress on MBE-style questions.
• Common exam traps, such as plaintiffs who suffer grief without physical manifestations, emotionally upset strangers or coworkers, and fact patterns that hide NIED issues within broader negligence scenarios.

MBE Syllabus

For the MBE, you are required to understand negligence-based recovery for emotional distress without physical injury, with a focus on the following syllabus points:

• The traditional bar on recovery for pure emotional harm in negligence and the policy reasons behind it
• The modern exceptions allowing Negligent Infliction of Emotional Distress (NIED), including:
  • Zone-of-danger (direct victim) claims
  • Bystander claims for witnessing injury to another
  • Claims arising out of special relationships or particularly sensitive contexts (e.g., corpse mishandling, erroneous death notifications, negligent medical information)
• The distinction between direct-victim NIED and bystander NIED
• The requirement of physical symptoms or objective signs of emotional distress in most jurisdictions, and recognized exceptions
• The contrast between pure emotional harm and pure economic loss in negligence
• How wrongful death, survival, and loss-of-consortium claims interact with emotional distress damages

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.

1. In a negligence action, when can a plaintiff most likely recover for emotional distress without any physical impact or bodily injury?
   1. Whenever the defendant acted unreasonably.
   2. Only if the plaintiff was in the zone of danger or falls within a recognized NIED exception.
   3. Whenever the plaintiff suffered severe distress, even if not foreseeable.
   4. Only if the defendant intended to cause distress.
2. Which of the following is generally required for a bystander to recover for NIED under the majority rule?
   1. The bystander must be any person who happens to witness the event.
   2. The bystander must be present at the scene, closely related to the victim, and perceive the injury as it occurs.
   3. The bystander must have suffered property damage as well as emotional distress.
   4. The bystander must have signed a waiver acknowledging the risk of distress.
3. In most jurisdictions, what is additionally required for a plaintiff to recover for NIED?
   1. Proof of physical symptoms or objective manifestations resulting from the distress.
   2. Proof that the defendant acted intentionally or recklessly.
   3. Proof of economic loss in excess of $75,000.
   4. Proof of a contractual relationship with the defendant.

Introduction

Negligence claims for mental distress not arising from physical harm—often called claims for pure emotional harm—are tightly controlled in tort law. The usual negligence case involves physical injury or property damage. Emotional distress damages are then parasitic to that physical harm. By contrast, when a plaintiff seeks to recover for emotional distress alone, without impact or bodily injury, courts worry about unlimited and speculative liability.

Key Term: Pure Emotional Harm
Emotional distress suffered by a plaintiff without any accompanying physical injury or property damage.

To balance compensation and limitation of liability, modern law recognizes a narrow set of situations in which a plaintiff may recover for emotional distress in negligence. These are grouped under the heading of Negligent Infliction of Emotional Distress (NIED).

Key Term: Negligent Infliction of Emotional Distress (NIED)
A negligence claim allowing recovery for emotional distress, even without physical injury, when the plaintiff fits within specific categories (such as zone-of-danger, bystander, or special-relationship cases) and satisfies additional requirements, including severity of distress and, in most jurisdictions, physical symptoms.

On the MBE, you must be able to:

• Spot when a claim is really about NIED rather than intentional infliction of emotional distress (IIED), assault, or another tort
• Recognize when the plaintiff is a direct victim (zone-of-danger) versus a bystander
• Apply the majority rule that usually requires objective physical symptoms of distress
• Distinguish pure emotional harm (limited recovery) from pure economic loss (generally no recovery)

General Rule: No Recovery for Pure Emotional Harm

Historically, the common law followed a strict “impact rule”: no recovery for emotional distress without contemporaneous physical impact. That rule has been relaxed, but courts still start from a general presumption against recovery for pure emotional harm in ordinary negligence actions.

Policy reasons include:

• Fear of fraudulent or exaggerated claims that are difficult to verify
• Concern that allowing emotional-distress claims by everyone upset by an accident would lead to indeterminate and unlimited liability
• The belief that minor emotional upsets are part of life and should not be compensated in tort

Today, the impact rule has largely been replaced by more specific tests, but the default remains: no recovery for emotional distress alone unless the plaintiff fits within a recognized exception.

Exceptions: When Recovery Is Allowed

Modern courts recognize several categories where emotional distress is sufficiently serious and foreseeable to justify recovery without physical injury. For MBE purposes, focus on three main routes to NIED liability:

• Direct-victim (zone-of-danger) claims
• Bystander claims
• Special-relationship and similar “sensitive context” claims

Key Term: Direct-Victim NIED
An NIED claim by a plaintiff whose own safety was directly threatened by the defendant’s negligence, usually under the zone-of-danger rule.

Key Term: Bystander NIED
An NIED claim by a plaintiff who suffers emotional distress from witnessing negligent injury to a close relative, subject to strict relational and presence requirements.

1. Zone of Danger Rule (Direct-Victim NIED)

Under the zone-of-danger approach, a plaintiff may recover for NIED if:

• The defendant’s negligence placed the plaintiff within the immediate risk of physical harm (within the “zone of danger”), and
• The plaintiff suffered serious emotional distress as a result of that threat,
• Usually accompanied by physical symptoms.

Key Term: Zone of Danger
The area in which the plaintiff was at immediate risk of physical impact or injury due to the defendant’s negligent conduct, even if no impact actually occurred.

Key points:

• The plaintiff does not need to be physically struck; a near miss can suffice.
• The plaintiff’s distress must arise from fear for their own safety (sometimes also fear for a loved one who is simultaneously imperiled).
• Most jurisdictions additionally require that the distress manifest in objective physical symptoms.

Key Term: Physical Symptom Requirement
The requirement, in most jurisdictions, that emotional distress be evidenced by physical effects (such as nausea, insomnia, headaches, weight loss, heart palitations, or other objectively verifiable symptoms) to support an NIED claim.

Courts treat zone-of-danger NIED as analogous to assault: apprehension of imminent harmful contact, but through a negligence lens rather than an intentional one.

Worked Example 1.1

A driver negligently runs a red light and brakes hard, stopping inches from a pedestrian in the crosswalk. The pedestrian is not touched but experiences intense fear, later developing insomnia and recurring stomach pain.

Answer:
The pedestrian was in the zone of danger of a negligently driven car and feared for her own safety. If she can show that her insomnia and stomach pain are physical symptoms of serious emotional distress, she can recover for NIED under the majority zone-of-danger rule.

2. Bystander Recovery

In some situations, a person suffers severe emotional trauma from witnessing another person—often a loved one—being seriously injured or killed by the defendant’s negligence. Even if the bystander was not within the zone of danger, many jurisdictions allow recovery for NIED if strict conditions are met.

Under the majority “bystander NIED” rule, a bystander may recover if:

• The bystander is closely related to the victim (typically spouse, parent, or child; siblings and fiancés are sometimes included but are less safe on the MBE)
• The bystander is present at the scene of the injury and
  • perceives the event as it occurs (contemporaneous sensory perception—seeing or hearing it in real time)
• The bystander suffers serious emotional distress, usually with physical symptoms

Key Term: Bystander NIED
A claim by a plaintiff who suffers severe emotional distress from witnessing negligent injury to a close relative, generally requiring close relationship, presence at the scene, contemporaneous perception, and physical symptoms.

Key Term: Physical Symptoms of Distress
Objective bodily effects of emotional distress, such as fainting, vomiting, weight loss, sleep disturbance, or other medically verifiable symptoms, used to distinguish compensable NIED from transient upset.

Some jurisdictions also require that the bystander be within the zone of danger, but on the MBE, assume the stand-alone bystander test: close relationship, presence and perception, and physical symptoms.

Worked Example 1.2

A mother watches her young child cross the street. A speeding truck negligently runs a stop sign and hits the child while the mother is a few steps away on the curb. She sees the impact and the child’s severe injuries. In the months that follow, the mother experiences intense grief, nightmares, and debilitating migraines.

Answer:
The mother can recover for NIED as a bystander: she is closely related to the victim, was present and perceived the injury as it occurred, and has physical symptoms (migraines) of serious emotional distress.

Worked Example 1.3

A woman hears that her spouse was killed in a factory explosion and rushes to the hospital, where she sees his severely injured body. She experiences intense grief but develops no physical symptoms.

Answer:
Under the majority rule, she likely cannot recover for NIED. She did not perceive the injury at the scene as it happened (she saw the aftermath only), and most jurisdictions require both contemporaneous perception and physical symptoms of distress.

3. Special Relationships and Other Exceptions

Certain relationships or contexts create a duty to avoid causing emotional distress, even outside the zone-of-danger or bystander frameworks. Courts treat these as exceptions because severe emotional distress is highly foreseeable.

Common special-relationship or “sensitive context” NIED situations include:

• Mishandling of a corpse: negligent loss, mutilation, or improper burial of a family member’s body
• Negligent transmission of a death or serious injury message: e.g., negligently misinforming someone that a close relative has died
• Negligent medical information: particularly a negligent misdiagnosis or erroneous communication that foreseeably causes serious distress (e.g., wrongly telling a patient she is HIV positive or has terminal cancer)

Key Term: Special Relationship
A relationship or context (such as funeral services, death notifications, or sensitive medical diagnoses) in which the defendant owes a heightened duty to avoid negligently causing severe emotional distress, sometimes allowing recovery without classic zone-of-danger or bystander elements.

In these settings:

• The plaintiff often need not be in physical danger.
• Some jurisdictions relax or eliminate the physical-symptom requirement because severe distress is especially predictable.
• The duty is usually limited to immediate family members in corpse and death-notification cases, or to patients in negligent medical-information cases.

Worked Example 1.4

A funeral home negligently cremates the wrong body and buries the plaintiff’s deceased spouse in a mass grave. When the mistake is discovered, the plaintiff experiences severe grief and severe depression, for which she seeks treatment.

Answer:
This falls within a recognized special-relationship NIED category (mishandling of a corpse). Even though the plaintiff was never in physical danger and did not witness the negligent act, many jurisdictions allow recovery for emotional distress in this context, sometimes without strict proof of physical symptoms.

Requirements for NIED Claims

Although the specific tests vary, you can organize typical NIED requirements into three layers:

• Plaintiff fits into a recognized NIED category (direct victim / zone-of-danger, bystander, or special-relationship case)
• Plaintiff suffered serious emotional distress (more than transient upset)
• In most jurisdictions, that distress produced objective physical symptoms, unless a narrow exception applies

Direct-Victim (Zone-of-Danger) NIED Elements

For a direct-victim NIED claim under the zone-of-danger rule, the plaintiff must show:

• The defendant’s negligence created an immediate risk of physical harm to the plaintiff
• The plaintiff was in that zone of danger at the time
• The plaintiff suffered serious emotional distress, typically from fear of imminent bodily harm
• The distress resulted in physical symptoms (unless the jurisdiction has abolished that requirement)

Worked Example 1.5

A train company negligently leaves a door open while passing a platform. A passenger standing near the door nearly falls out but catches himself. He later develops persistent heart palpitations and anxiety.

Answer:
The passenger was within the zone of danger created by the open door and feared for his own safety. His heart palpitations and anxiety attacks are physical symptoms of severe distress, supporting a direct-victim NIED claim.

Bystander NIED Elements

For a bystander NIED claim under the majority rule, the plaintiff must show:

• The defendant’s negligence seriously injured or killed a third person
• The plaintiff is closely related to that victim (think spouse, parent, or child on the MBE)
• The plaintiff was present at the scene and perceived the injury as it occurred
• The plaintiff suffered severe emotional distress, not just sorrow or grief
• The distress produced physical symptoms

If one of these elements is missing—especially close relationship, presence, or physical symptoms—assume no recovery on the MBE.

Worked Example 1.6

Two coworkers are standing on a sidewalk when a negligent driver strikes one of them. The uninjured coworker sees the impact and later experiences severe sadness but no physical symptoms.

Answer:
The uninjured coworker is not closely related to the victim (a coworker is not treated as immediate family), and he has no physical symptoms of distress. He therefore cannot recover for NIED as a bystander.

Special-Relationship NIED Elements

Special-relationship NIED claims vary, but the pattern is:

• A relationship or context making serious emotional distress highly foreseeable (funeral services, death notifications, sensitive diagnoses)
• Negligent performance of that duty
• Severe emotional distress to a narrowly defined class of plaintiffs (typically close family or the patient)

Some jurisdictions:

• Relax the physical-symptom requirement in these settings, or
• Treat these cases as a hybrid between NIED and ordinary negligence.

On the MBE, focus less on precise doctrinal labels and more on whether the fact pattern fits one of the classic sensitive contexts.

Physical Symptom Requirement

Most jurisdictions still require objective physical symptoms of emotional distress for NIED. Common examples include:

• Sleep disturbances (insomnia, nightmares)
• Gastrointestinal problems (nausea, ulcers, stomach pain)
• Headaches, migraines, weight changes, or panic attacks
• Miscarriage precipitated by emotional shock

A few jurisdictions have moved toward allowing recovery for serious, medically verifiable emotional distress without physical symptoms, but the MBE generally follows the majority physical-symptom requirement, except in limited special-relationship cases.

Worked Example 1.7

A pedestrian is nearly struck by a car but is not physically touched. She is terrified for a few days but experiences no ongoing symptoms and seeks no medical treatment.

Answer:
Although she was in the zone of danger, her transient fright without ongoing severe distress or physical symptoms is unlikely to satisfy the majority NIED standard.

NIED and Other Negligence Limits

NIED vs. Pure Economic Loss

The law also limits recovery for pure economic loss—financial harm with no accompanying personal injury or property damage.

Key Term: Pure Economic Loss
Economic or financial loss suffered without accompanying personal injury or property damage; generally not recoverable in negligence absent a special duty or relationship.

Under the majority rule:

• A plaintiff who suffers only economic loss due to negligence (e.g., lost profits because a road was negligently closed) cannot recover in negligence.
• If the plaintiff suffers personal injury or property damage, economic losses and emotional distress associated with that injury are recoverable as part of ordinary negligence damages, without needing to meet the NIED tests.

MBE trap: Do not confuse pure emotional harm (where NIED may apply) with pure economic loss (generally no recovery).

NIED vs. Wrongful Death, Survival, and Loss of Consortium

Wrongful death and survival statutes, and separate loss-of-consortium claims, allow recovery for losses associated with death or injury of a family member, including emotional components. These claims:

• Are governed by statute (wrongful death and survival) or common law (loss of consortium)
• Do not require the plaintiff to satisfy NIED elements like zone of danger or physical symptoms

MBE trap: When the fact pattern emphasizes shock from witnessing an event, think NIED. When it emphasizes the ongoing impact of a death or injury (loss of support or companionship), think wrongful death or consortium rather than NIED.

Limits and Policy Reasons

Courts strictly administer NIED rules to prevent:

• Unlimited liability to all who experience distress when something bad happens
• Speculative and unverifiable claims
• Overlapping recovery where emotional distress is already compensable under other doctrines

Key limiting devices:

• Requiring the plaintiff to fit within narrowly defined categories (zone-of-danger, bystander, special relationship)
• Demanding severe distress, not ordinary grief or worry
• Insisting on physical symptoms in most cases
• Requiring a close familial relationship and presence at the scene for bystander claims

Worked Example 1.8

A pedestrian is crossing a street when a truck negligently hits another pedestrian just ahead. The first pedestrian jumps out of the way, is splattered with the victim’s blood, and later develops depression and stomach ulcers.

Answer:
The plaintiff can argue two things:

• He was in the zone of danger and feared for his own safety.
• He has physical symptoms (ulcers) of serious distress.
  These facts support a strong direct-victim NIED claim. His role as a Good Samaritan in aiding the victim is not itself a separate category, but his own exposure to danger and physical symptoms are key.

Exam Warning

On the MBE, do not assume that every distressed plaintiff can recover for NIED.

• Ask first: Is the plaintiff in the zone of danger, a qualifying bystander, or in a recognized special-relationship context?
• Then ask: Is the distress severe, and are there physical symptoms, unless a narrow exception applies?
  If the answer to either question is no, NIED recovery is unlikely.

Revision Tip

When you see emotional distress without physical injury:

• Classify the plaintiff (direct victim, bystander, or special-relationship context).
• Check for close relationship, presence, perception, and physical symptoms.
• Be alert to pure economic loss and wrongful-death/consortium statutes as distinct doctrines.

Key Point Checklist

This article has covered the following key knowledge points:

• Negligence does not generally allow recovery for pure emotional harm without physical injury or property damage.
• NIED is a narrow exception, primarily in three categories:
  • Direct-victim claims under the zone-of-danger rule
  • Bystander NIED for close relatives who witness injury in real time
  • Special-relationship or sensitive-context cases (e.g., corpse mishandling, erroneous death notification, negligent medical information)
• Direct-victim NIED requires the plaintiff to be in the zone of danger and to suffer serious distress with physical symptoms.
• Bystander NIED requires a close family relationship, presence at the scene, contemporaneous perception, severe distress, and physical symptoms.
• Special-relationship NIED reflects heightened foreseeability of distress and may relax some requirements in narrow contexts.
• Most jurisdictions impose a physical symptom requirement for NIED; emotional upset alone is not enough.
• Pure economic loss is generally not recoverable in negligence absent special duties, but once there is personal injury or property damage, emotional and economic losses are recoverable as ordinary damages.
• Wrongful death, survival, and loss-of-consortium claims address family members’ losses without requiring NIED elements.
• On the MBE, strict application of category, relationship, presence, and physical-symptom requirements is a frequent source of traps.

Key Terms and Concepts

• Negligent Infliction of Emotional Distress (NIED)
• Pure Emotional Harm
• Direct-Victim NIED
• Zone of Danger
• Bystander NIED
• Physical Symptom Requirement
• Physical Symptoms of Distress
• Special Relationship
• Pure Economic Loss