Negligent Infliction of Emotional Distress – The Law in California

Updated May 10, 2021

California law permits the recovery of compensatory damages for the negligent infliction of emotional distress (NIED). This is not an independent cause of action. Rather, it is a basis for damages in a plaintiff’s for negligence claim.

Under California law, emotional distress damages can be claimed by someone who was either a direct victim of another’s wrongful act, or who was 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, below:

• 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

A plaintiff is the 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, the plaintiff 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 the plaintiff 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 a plaintiff must show that:

• The plaintiff is closely related to the victim,
• The defendant’s conduct negligently caused injury or death to the victim,
• The plaintiff was present at the scene of the injury (“zone of danger”) when it occurred and was aware that the victim was being injured, and
• As a result of the injury, the plaintiff 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 as the victim,⁶ or
• The victim’s 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, the plaintiff 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 the plaintiff heard the accident but was 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 mean that the plaintiff must see the accident. It means, however, that the plaintiff must have been aware at the time of the accident, through some sensory means, that his or her relative was being injured.¹¹

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