What Are The Defenses To Nied in Torts?

Defenses to Negligent Infliction of Emotional Distress (NIED) include lack of duty, lack of foreseeability, and the impact rule, which requires that a plaintiff must have suffered a physical injury as a result of the emotional distress.

In NIED claims, defendants can assert various defenses that challenge the plaintiff's ability to demonstrate the necessary elements of the tort. One prominent defense is the lack of duty, where the defendant contends that they did not owe a duty of care to the plaintiff in the specific context of the alleged emotional distress. For example, if the defendant's conduct was not directed at the plaintiff or online comments did not result in a situation where emotional distress could have been reasonably foreseen, this might defeat a claim of NIED.

Another common defense involves the concept of foreseeability. Defendants may argue that the emotional harm suffered by the plaintiff was not a foreseeable result of their conduct, hence negating liability. This is often evaluated based on the relationship between the defendant's actions and the emotional distress claimed by the plaintiff. If a reasonable person would not have predicted the distressing outcome, then NIED liability might not be warranted.

Additionally, many jurisdictions employ the impact rule, which requires that a plaintiff must suffer a physical injury in order to claim emotional distress. If the plaintiff cannot prove that the emotional distress was accompanied by any physical harm, this is a significant barrier to recovery under NIED claims. This defense reflects traditional views that link emotional injuries to tangible physical experiences.

Jurisdictions may also recognize defenses such as the plaintiff's own fault or acceptance of risk, arguing that the plaintiff’s actions contribute to or induce the emotional distress. Where a plaintiff engages in reckless behavior that leads to their distress, the defendant may successfully assert comparative negligence.

Lastly, some jurisdictions allow for the defense of constitutional privilege, particularly in cases involving public figures or commentary, asserting that the speech at issue is protected, reducing the motivation to find liability for NIED.

• 1Dillon v. Legg (1968) - established the 'bystander rule' for NIED claims.
• 2Thing v. La Chusa (1989) - clarified the standards for establishing a NIED claim.
• 3Westcott v. California (2003) - addressed foreseeability and duty in NIED cases.
• 4Porter v. Nussbaum (2004) - explored emotional distress stemming from intentional misconduct.

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