IIED -- PFC
• Conduct: Extreme and outrageous conduct
• State of mind: Either -• Intent: Intent to cause severe emotional harm
• Recklessness: Indifferent to risk
• Result: Severe emotional harm
• [Factual Causation]
IIED – PFC
When Conduct Directed at Third Person
• Conduct: Extreme and outrageous conduct
• Presence Requirement: P must be present
• State of mind: Either -• Intent: Intent to cause severe emotional harm
• Recklessness: Indifference to risk of severe emotional
harm
• Result: Severe emotional harm
* If P not family member of third person, emotional
distress must result in bodily harm
Repo Man Hypo
Mary was driving across town to bring her husband his lunch. With
her are her 2 children, ages 9 and 6-months. Repo Man is following
Mary. Mary and her husband Mo are delinquent on their car
payments, and Repo Man’s boss has directed him to seize the car if
given an opportunity to do so. Upon arriving at her husband’s
office, Mary runs in for a quick minute to bring Mo his lunch,
leaving the kids in the car. Repo Man jumps into the driver seat,
notices the kids, but drives off anyway. Hearing the screeching of
tires as Repo Man drives off, Mary and Mo run outside and see
that their car (with the children) is missing. Panicked, they call the
police. Repo Man, regretting what he has done, abandons the car
5 blocks away. The police find the car 15 minutes later. The 9-year
old child is traumatized by the event and has frequent nightmares.
Mary also is traumatized, although Mo recovered his composure
soon after the police found the car and children. The 6-month old
obviously has no recollection of what happened. The whole family
sues Repo Man for IIED. Will they prevail?
Scenario #1:
Negligent Act
Physical Harm
Emotional Distress
Scenario #2 (Mitchell Facts):
Negligent Act
Emotional Distress
Physical Harm
PFC -- Mitchell
• D owed P a Legal Duty
• Breach of Duty
• Actual Harm
• Factual Cause
• Proximate Cause
*D’s Negligence is proximate cause of
emotional harm only if emotional harm
stems from physical injury
NIED – Fright-for-Self Cases
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Approaches:
Physical harm (Mitchell)
Physical impact
Physical manifestation
Zone of danger
Severe emotional distress
Combination of the above
Bystander Cases -- Zone of Danger Test
“Zone of Danger” Test:
1) P w/in zone of danger
2) P feared for own physical safety
Scenario #1: Emotional distress from (1) fear for own safety, and (2)
witnessing harm to third party
• Some courts: recover for all emotional distress
• Some courts: only recover for emotional distress resulting from
fear for self
Scenario #2: Emotional distress due entirely to witnessing
harm to third party
• Majority: no recovery
• Minority: recovery allowed
Summary -- Approaches Bystander Cases
• Minority: No recovery for bystanders -period
• Majority: Dillon or Thing test
• Some jurisdictions: Allow recovery if
meet fright-to-self requirements
* Note: Most courts require that emotional distress
due in part to fear for self (vs. shock of seeing harm
to other)
Negligence PFC – Direct Victim
• D owed P a Legal Duty to Protect from
Emotional Harm
• Breach of Duty
• Actual Harm -- Serious/Severe Emotional
Distress
• Factual Cause
• Proximate Cause
Types of NIED Cases
1) Fright-to-Self: D’s conduct puts P at-risk of
imminent physical harm
2) Bystander: P witnesses D’s conduct harming
another
3) Direct Victim: Direct duty to reasonably protect P
from emotional distress when :
• Pre-existing relationship + negligent performance highly
likely cause serious emotional distress
• D assumes a duty to protect P from emotional distress
• Duty imposed by law
PFC – Camper
• D owed P a Legal Duty
*Generally owe duty of care to protect from
emotional harm
• Breach of Duty
• Actual Harm
* Serious/severe emotional harm + expert
medical/scientific proof
• Factual Cause
• Proximate Cause