“Negligent Infliction of Emotional Distress” – The Law in California

California law allows you to recover damages for the negligent infliction of emotional distress (abbreviated NIED). This is not an independent cause of action. Rather, it is a basis for damages in a negligence claim.

Under California law, emotional distress damages can be claimed if you were either

1. a direct victim of someone’s wrongful act, or
2. a bystander that witnessed an injury to a close relative.

Damages for a plaintiff’s emotional distress can include both economic- and non-economic damages such as:

• Medical bills,
• Bills for psychological counseling,
• Lost wages, and
• Pain and suffering, including loss of enjoyment of life

To help you better understand the law, our California personal injury lawyers discuss:

• 1. What is emotional distress under California law?
• 2. The elements of a “direct victim” claim
  • 2.1. Does a “direct victim” claim require a physical injury?
• 3. The elements of a “bystander” claim for emotional distress
  • 3.1. Who is a “close relative” under California law?
  • 3.2. What does it mean to witness an accident?

1. What is emotional distress under California law?

Emotional distress in California includes (without limitation):

• suffering,
• anguish,
• fright,
• horror,
• nervousness,
• grief,
• anxiety,
• worry,
• shock,
• mental distress,
• emotional harm,
• emotional trauma,
• humiliation, and
• shame.

Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with the mental stress engendered by the circumstances of the case.¹

2. The elements of a “direct victim” claim

You are a direct victim of negligent infliction of emotional distress if:

1. The defendant exhibited negligent conduct, and
2. As a result of the defendant’s negligence, you suffered serious emotional distress.²

2.1. Does a “direct victim” claim require a physical injury?

No. The question for a jury is whether the elements of a cause of action for negligence exist.

In other words, did the defendant owe you a duty of care in California and, if so, did the defendant breach that duty through his/her mishandling of the situation? ³

If the answers are “yes,” the only question is whether a reasonable person, under similar circumstances, would be able to cope with the mental stresses placed on the plaintiff by the injury.⁴

3. The elements of a “bystander” claim for emotional distress

To prove negligent infliction of emotional distress as a bystander in California, you must show that:

• You are or were closely related to the victim,
• The defendant’s conduct negligently caused injury or death to the victim,
• You were present at the scene of the injury (“zone of danger”) when it occurred and were aware that the victim was being injured, and
• As a result of the injury, you reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness.⁵

3.1. Who is a “close relative” under California law?

Absent exceptional circumstances, “close relative” means:

• A spouse, registered California domestic partner or relative who resides in the same household,⁶ or
• Your parents, siblings, children, and grandparents.⁷

With the exception of domestic partners, California courts have not allowed recovery for bystander damages for emotional suffering by unmarried cohabitants – even if they have a “close relationship”.⁸

3.2. What does it mean to “witness” an accident?

To recover damages for bystander infliction of emotional distress, you must have been both:

1. Present at the scene of the injury-producing event at the time it occurred, and
2. Aware that the event was causing injury to the victim.⁹

If you heard the accident but were not immediately aware it was causing injury, there is no basis for recovery for a claim for negligent infliction of emotional distress — even if the missing knowledge was acquired moments later.¹⁰

This does not necessarily mean that you must see the accident. It means, however, that you must have been aware at the time of the accident, through some sensory means, that your relative was being injured.¹¹

Further Resources:

Also see our article on intentional infliction of emotional distress in California.

For injury claims in Nevada, please see our article on negligent infliction of emotional distress in Nevada.

Disclaimer: Past results do not guarantee future ones. This page was prepared by our California personal injury attorneys.