Negligent Infliction of Emotional Distress (“NIED”)

  1. Introduction

    The victim of a nonconsensual online publication of intimate photographs or videos may sue under the common law tort of negligent infliction of emotional distress in situations where the material’s publication caused the victim to suffer severe emotional distress.

  2. Elements

    1) The plaintiff must suffer a physical injury;

    2) The plaintiff’s physical injury must be the result of psychological trauma;

    3) The plaintiff must be involved in some way in the event causing the negligent injury to another; and

    4) The plaintiff must have a close personal relationship to the directly injured person.1

  3. Cases

    1. Badillo v. Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707 (M.D. Fla. Mar. 28, 2006)

      • Procedural Posture: On defendants’ motion for summary judgment on all claims

      • Law: NIED; 18 U.S.C. §§ 2251, 2252, 2252A (“Sexual Exploitation of Children”); Fla. Stat. § 540.08; Invasion of Privacy (“Misappropriation” and “False Light”); Negligent Supervision; Premises Liability; Florida Deceptive and Unfair Trade Practices Act; Civil Conspiracy; Aiding and Abetting

      • Facts: Plaintiffs, seventeen and eighteen-year-old girls who had travelled to Florida together for spring break, participated in a wet T-shirt contest at a local hotel. They consumer Budweiser products behind the stage, and affixed temporary tattoos containing the “Bud Light” insignia on their arms, back, and breasts. Once on stage, Plaintiffs danced provocatively, exposing their breasts, and one of the two plaintiffs exposed her genital area. The plaintiffs never asked to withdraw from the competition. The contest was photographed and recorded on videotape by employees or agents of co-defendant production companies, and footage of plaintiffs was subsequently incorporated into commercial video products sold at several retail stores and broadcast over cable networks. The products were not related to defendant Anheuser Busch. Plaintiffs sued under various federal and state laws to claim damages for the dissemination of the footage, claiming that they had been wrongfully induced to enter the wet t-shirt contest and had not consented to the use of their image by defendants.

      • Outcome: The court granted summary judgment for the defendant Anheuser Busch on all claims because plaintiffs produced no evidence that defendant had induced them to participate in the contest, and had failed to show that defendant was even aware of the video, let alone knew that the videos were being published to “directly promote” defendant’s products. The court explained that “[a]t most, [plaintiffs’] images on the video are expressive works used solely for the purpose of entertaining the viewer.”2 Moreover, “[t]hat Plaintiffs in hindsight regret their decision to participate in the contest does not negate the fact that they willingly and voluntarily participated and willfully and voluntarily engaged in the conduct that is shown on the video tape. Plaintiffs have . . . presented no substantive evidence to sustain their claim.”3 In regards to the NIED claim, the court dismissed because plaintiffs failed to show that defendant owed them any duty. Plaintiffs alleged that defendant had a duty to “inquire as to Plaintiffs’ ages, obtain proof of identification, and obtain consents prior to allowing Plaintiffs to participate in the wet t-shirt contest,” but “Defendant controlled neither the contest nor the stage on which the contest was held,” thus it could not be said to have “created or controlled the risk of harm [p]laintiffs are alleging.”4

  4. Practice Pointers

    Florida recognizes an “impact rule,” in which the emotional distress must be accompanied by a “physical impairment” within a short period of time.5 A WMC victim would have to satisfy the physical injury requirement.

    Moreover, a WMC victim is also unlikely to bring an NIED claim because in most cases, he or she is being affected by someone’s intentional (rather than negligent) actions. On the other hand, one can imagine a situation where the offender lost or gave away a computer that stored the images that were subsequently made public, and this could provide the basis for an NIED claim.

  1. Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 873 (Fla. 2007). 

  2. Badillo v. Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707, at *4 (M.D. Fla. Mar. 28, 2006). 

  3. Id. 

  4. Id. 

  5. Zell v. Meek, 665 So. 2d 1048, 1053-54 (Fla. 1995).