Author: Kshitij Kothari, 1st Year, B.A LL.B (Hons), School Of Law, Jagran Lakecity University, Bhopal. The article has been written by the author while pursuing the internship programme with us. INTRODUCTION Negligent Infliction of Emotional Distress is a complicated legal terminology in the field of tort law which requires dissevering, not because it has the greatest social impact but because it involves a significant interest for which the law is in an “unparalleled state of confusion”[1] and a type of negligence tort, where a defendant carelessly causes the plaintiff some mental or emotional harm (shock, anxiety, etc.). According to Winfield and Jolowicz- Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff[2]. This results from the behavior that is unintended to harm and perhaps is violation of law. The precipitate response is characterized by trauma or shock, in sequence is absorbed by the bystander without serious emotional complications. When the initial stimulus is severe and occurs suddenly, however, the primary reaction may become intensified and manifest itself through secondary psychic responses involving emotional and physical repercussions[3]. The party in contact with the secondary responses can seek compensation in result to the injuries suffered by them. The controversial (as many jurors have given different opinions which has made Negligent Infliction of Emotional Distress is a debatable topic in the field of tort) law is available to plaintiffs in most states, which vary quite a bit on how the cause of action is applied in the courts. Negligent Infliction of Emotional Distress assumes that the defendant has a legal duty to use reasonable care with regard to the plaintiff contrary to intentional infliction of emotional distress, where central consideration is the intent. HISTORICAL BACKGROUND AND EVOLUTION Emotional harm was viewed as subjective and difficult-if not impossible to assign damages. Moreover, certain types of interest, because of various difficulties that are present, have been afforded little protection at the hands of the law against negligent invasions. The tort of Negligent Infliction of Emotional Distress has emerged as a cognizable and independent cause of action within approximately the last half century[4]. Prior to that time courts avoided awarding damages for negligently inflicted emotional injuries because the early common law was “wary of opening the floodgates to fraudulent, frivolous, and perhaps even marginal lawsuits”. Concerns stemmed from a scarcity of precedent, a fear of frivolous litigation, and from an issue in measuring emotional harm physically and financially[5]. A company that maliciously decides to place obscene films or videos in children’s movie containers could be sued for the significant amount of damages for intentional inflection of emotional distress and it might face criminal charges for the same. The question that comes to light is what if it happens accidentally. Is the company intentionally trying to show children too immaterial which may put the utilization of distressing movements or visit simply negligent, foolish, and not as responsible or not in-tuned within? In Boyles v Kerr[6], Boyles along with his friends, recorded a tape of his intimate moments with Kerr. This was then shown by Boyles to some of his friends but was never distributed to the public. However some part of the footage was leaked out and as a result of this Kerr underwent severe emotional distress. In this case, it is pretty clear that there was no intention on the part of Boyles to inflict emotional distress on Kerr. It could be argued that there was foreseeability of resulting emotional harm to others, by making the video viewed. In the dissenting opinion of this case, Justice Doggett[7] states the following regarding foreseeability: In determining whether the defendant was under a requirement, the court will consider several interrelated factors, including the danger, foreseeability, and injury weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of these factors foreseeability of the danger is “the foremost and dominant consideration”. But the courts were unwilling to consider it as Negligent Infliction of Emotional Distress. RESTRICTIONS AND CAUSE OF ACTION Each jurisdiction would have to determine the case whether the case about the Negligent Infliction of Emotional Distress is valid. Part of the many regions of the challenges referring to Negligent Infliction of Emotional Distress becomes very hard for the court to state out whether any type of line in the case can be drawn. Perhaps the company that puts the wrong films on the wrong cases cannot be held responsible because it is their business. But what if a person accidentally slips on the rock outside, hits his head on the ground, begins bleeding and terrifies the neighbor’s two-year-old. There is no intent to cause emotional distress but what if the charge allowed fear radically that the parent of two years old could sue the neighbor for falling. Most of the juries or judges are likely to decide that the parents do not have a good case against the person who accidentally slips and fell. Still there is a grey area where a case might be initiated and where maybe orbited to tell an appropriate cause. Restrictions still exist as to intentional infliction of emotional distress and Negligent Infliction of Emotional Distress. As noted, those restrictions include a requirement: 1. that the emotional distress be “severe” 2. that the tortious conduct produce contact with the plaintiff; 3. that the plaintiff sustains some physical manifestation of the distress; and 4. that the plaintiff be within the zone of danger of physical harm A cause of action for Negligent Infliction of Emotional Distress has six elements[8]: a) The defendant’s conduct is negligent b) The negligent conducted created an unreasonable risk of physical harm c) Causing the plaintiff to be in fear of their safety d) That the plaintiff either ⮚ Suffered physical injury or ⮚ was in the “zone of danger” created by the negligent conduct e) The plaintiff’s fear had “physical consequences” or “long-continued emotional disturbance”. f) The defendant’s action was the cause of the damages. DILLON’s CONCEPT In Dillon v/s Legg[9] it was alleged that the mother, who was not in the zone of physical danger, and one of her daughters, who was arguably within the zone of danger, witnessed an accident in which another daughter was struck and killed by a negligent driver. Finding a cause of action, the court emphasized the primary importance of the foreseeability of risk in establishing a duty owed to the plaintiff in the absence of overriding policy considerations[10]. However, the court believed that neither fear of fraudulent claims nor unlimited liability justified denial of liability. The guidelines that were framed on how a bystander can recover for Negligent Infliction of Emotional Distress, only if the plaintiff adopts the cause of action with the following elements[11]: a) the negligence of the defendant must cause death or serious physical injury to another; b) the plaintiff bystander must be near to the accident; c) the plaintiff and the victim must be closely related; d) the plaintiff must contemporaneously perceive the accident; and e) the emotional distress must both notarize itself by physical symptoms capable of objective diagnosis and be established by expert testimony WHAT RESTRICTIONS ARE FACED AND SOLUTIONS CAN BE PREFERRED A principled solution is made only on a sound theoretical foundation, which can require an alternate construct to the normal approach when the underlying assumptions do not hold. The problem is that courts have continued to research mental injuries through a physical injury prism. Courts and students have viewed reasonable foreseeability and negligent culpability as singular concepts without distinction. To find a more principled solution, the notion of duty must be conceptualized foreseeability of risk. Because of the unforeseeable nature of mental injuries and its consequences on the appliance of the principles of law, the distinction must be made on the concepts of duty and foreseeability. The formulation of duty must consider the plaintiff’s interests, the defendant’s culpability, and therefore the policy considerations. When such analysis is engaged, a more principled theory can coincide with the practical policy of limiting liability. This approach requires that the principles of liability and damage be adjusted to reflect the interests and capabilities in dispute[12]. INDIAN SCENARIO As law of torts in India has a non-binding nature but the traces of Negligent Infliction of Emotional Distress can be found in the MMS scandal[13] in Delhi Public School, RK Puram that rocked the nation seems has striking similarities to the case of Boyles v Kerr[14]. But in India, it is inconceivable that a girl would bring a lawsuit of inflicting emotional distress along with capturing her privacy, against her ex-boyfriend. The publicity that such a case will bring is sufficient to silence any girl or woman from coming out and suing the boy. Also because of the long and rhetorical case trails, the future of that particular lady will get ruined and if justice is delivered it would be late for her to restore the past. In reality, this tragedy took the form of a criminal case, and the boy who made the videotape as well as the CEO of the site where this clip was uploaded i.e.,, were arrested. Opening the area of intimate relationships for litigation in India may not yield any satisfactory outcomes, mainly due to the aforementioned reasons. While it may not be established immediately, a ground for emotional distress could help empower women further and help them seek justice against such types of emotional distress. CONCLUSION Tort law places no impediments in the path of those who seek recompense for emotional injuries caused by the negligently inflicted physical injury. Having traced the evolution of the emotional distress explanation for action, the subsequent answers to the questions posed at the start of this text could also be offered. What are the essential elements of the explanation for action for Negligent Infliction of Emotional Distress? The basic elements remain the same as originally set out, namely, the plaintiff must prove: ✔ His presence was close to the accident when the event happened; ✔ His emotional distress results from the contemporaneous and sensory observation of the accident; ✔ He was closely related to the victim. Nevertheless, the enervating effects of emotional distress are often severe, and, therefore, the courts should no longer refuse to recognize and protect the substantial individual’s mental health interests involved in the adjudication of claims for the Negligent Infliction of Emotional Distress. The time for recognition of a separate claim for Negligent Infliction of Emotional Distress has arrived[15]. References: [1] W.E. Shipley, Annotation, Right to Recover for Emotional Disturbance or Its Physical Consequences, in the Absence of Impact or Other Actionable Wrong, 64 A.L.R.2D 100, 103 (1959).

[2] Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45.

[3] Negligent Infliction of Emotional Distress: Keeping Dillon in Bounds, 37 Wash. & Lee L. (1980).

[4] Robert J. Rhee, “A Principled Solution for Negligent Infliction of Emotional Distress Claims”.

[5] Ibid.

[6] Boyles v/s Kerr – 855 S.W.2d 593 (Tex 1993).

[7] Infliction of Emotional Distress, Lawteacher (May11, 2020, 10:33AM)

[8] Vance v. Tolmar, Inc., 2018 WL 1456275, at *7 (D. Colo. Mar. 23, 2018) citing Draper v. DeFrenchi Gordineer, 282 P.3d 489, 496–97 (Colo. App.2011).

[9]Dillon v. Legg, 441 P.2d 912, 924 (Cal. 1968) (noting that the history of Negligent Infliction of Emotional Distress does not show the development of a principled rule but rather “a series of changes and abandonments”). [10] Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 HASTINGS L.J. 07, 01-41 (1982). [11] Thomas C. Galligan & et al., Tort Law: Cases, Perspectives, and Problems, 382, 1-1020 (4th ed. 2007).

[12] A Principled Solution for Negligent Infliction of Emotional Distress Claims by Robert J. Rhee 806, 806(2004). [13] Avnish Bajaj v. State, (N.C.T) of Delhi (2005) 3 Comp. L.J. 364, Delhi. [14] Supra 6. [15] John E. Flanagan, Negligent Infliction of Emotional Distress: A Proposal for a Recognized Tort Action, Volume 67, 558, 602-603, (1984). Disclaimer: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

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