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Jonathan Rosenfeld

August 30, 2021

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If you or a family member witness a traumatic event or accident, like a car accident, then the bystander may be able to bring a case for negligent infliction of emotional distress (NIED) for the emotional harm, physical injury, serious emotional distress, personal injury, and other negligent injury or emotional distress damages that you the direct victim suffered from the defendant’s conduct.

We help bring personal injury cases and personal injury claims for negligent infliction of emotional distress (or intentional infliction) that causes subsequent physical harm, physical injury, emotional injury, mental stress (also severe emotional distress), mental distress, and other consequences due to the defendant’s negligence from the same accident.

In an attorney client relationship, we can offer legal advice on personal injury cases that might help you the plaintiff or the injured person recover damages including an emotional distress claim for the emotional distress suffered as well as the physical injuries, personal injuries, emotional damages and other compensatory damages from the defendant’s negligent act.

how to recover compensation for negligent infliction of emotional distress

When a family member witnesses an accident involving serious injury or death of a loved one, they can make a recovery for negligent infliction of emotional distress.

Rosenfeld Injury Lawyers understands the emotional harm that the negligent infliction of emotional distress might engender and the following sections review NIED claims in more detail and how a reasonable person might bring such a claim for plaintiff’s injury. Contact us for a free consultation to learn more.

Case Elements of a Negligent Infliction of Severe Emotional Distress Case

Negligent infliction of emotional distress lawsuits or NIED claims have rules in each state for the plaintiff to follow and prove to prevail in court. Here is a brief overview of them:

Foreseeability Rule– The defendant or other wrongdoer (i.e. drunk driver) should have been able to reasonably foresee that his or her actions and misconduct would have created the emotional distress or immediate risk of physical danger. In other words, would one person using reasonable care have predicted that the direct victim would have had mental stress engendered from these acts? That is the test the plaintiff must pass in their claim to succeed using all the facts and circumstances of the event.

Zone of Danger Rule– Was the plaintiff was in a specific “zone of danger” and at risk of physical harm, causing fear. The zone of danger rule is closely related to the foreseeability rule in that both are used to judge the reasonableness of the acts and possible negligent infliction of emotional harm that followed.

Impact Rule – Defendant’s negligent act had at least a minor impact on the plaintiff, causing injury (very few states follow this) including physical manifestations, emotional trauma, etc. The impact rule really just requires the plaintiff to prove damages like in any other claim.

These are the elements required in a plaintiff claim for negligent infliction of emotional distress and essential factual elements in NIED claims that you must prove to a court under California law and most other states.

Bystander Rule in NIED Cases

California law and nearly all there big states allow bystanders of traumatic accidents to bring negligent infliction of emotional distress claims. In that claim, the plaintiff must witness their spouse, domestic partner, or other family member suffer injury or death in the catastrophic incident.

Note, this is a variant of the the traditional emotional distress negligent infliction lawsuit because the plaintiff merely witnessed the events. Their injury or damages were not the direct result of the defendant’s misconduct, but rather, an indirect consequence.

Here are other material points to a bystander claim:

  • Close relationship to the victim.
  • Negligent conduct that causes death or injury.
  • The plaintiff knew the victim was suffering injury and was within the zone of danger.
  • Due to witnessing the accident, the plaintiff actually suffered injury and damages.

If you saw your close relative get killed or injured and emotional distress exists or other harms, call us to hear how California law or other states allow you to recover and obtain compensation.

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Remedies in a NIED Claim for Physical Injury and Emotional Distress Harms

Similar to the derivative case that triggered the following negligent infliction of emotional distress claim, many state have varied opinions and rules on what compensation and damages may be awarded by a judge or jury.

Typically, if you look at instructions, like the California Civil Jury Instructions, they set forth that relief should correspond directly to the injury that the plaintiff actually suffered, emotional and otherwise.

Yet, this has turned out to be a much tougher number to quantify in practice especially as they try to weigh their other objective: preventing similar misconduct from happening again. In fact, deterrence is normally a goal in mind in many court cases and rulings.

Frequently, we find that plaintiffs in these causes of actions get less that the victims of the original event but you should speak with your counsel about all avenues to

How Can an Attorney Help Bring a NIED Claim for Compensatory Damages?

In the immediate aftermath of the crash or other sudden event, your mind will probably race to medical attention and what you need to do to survive and protect your loved ones. That is completely normal and appropriate.

However, an experienced legal team can go to work for you right from the start so that your future recovery is protected. This will allow you to focus on your health while we focus on your legal rights. Here are a few items we can tackle:

  1. Identify and interview all witnesses as well as collect all necessary evidence and notes of the incident occurred.\
  2. Gather your medical history.
  3. Tally all lost income and expenses that accrued due to the crash.
  4. Communicate with the at fault parties and relevant third parties including insurance companies.
  5. File a claim in court, present a case to trial, and initiate settlement negotiations.

If you wish to hear more about your options for compensation and recovery, get in touch with us today.

Law Firm and Personal Injury Attorneys that Will Fight for You

Rosenfeld Injury Lawyers works with victims and their families of tragic car accidents and other similar events. If you are injured in one or witness a family member or loved one suffer harm, call us today.

We can give you a free consultation on your rights and other legal resources Our attorney client arrangement is such that we don’t take any money unless we collect an award or settlement for you. Use our contact form to start your case today.

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