Negligent Infliction of Emotional Distress

  1. Introduction

    The victim of a nonconsensual online publication of intimate photographs or videos may sue under the tort of negligent infliction of emotional distress (“NIED”). The claim is applicable where a defendant’s negligent publication of the material caused severe emotional distress to a plaintiff.

    Pennsylvania’s Supreme Court has adopted four theories of NIED recovery: where (1) defendants whose actions were negligent had “a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative.”1

  2. Elements

      (1) Defendant negligently causes an actual or threatened physical impact or injury o the plaintiff or a close family member;

      (2) Causing plaintiff severe emotional distress.

  3. Cases

    1. Toney v. Chester Cty. Hosp., 614 Pa. 98, 36 A.3d 83, 84 (2011)

      • Procedural Posture: Defendants filed a motion to dismiss for failure to state a claim, which was granted by the trial court. Plaintiff appealed and the case was remanded and set for trial. Defendants filed a petition for allowance of appeal on the issue of whether a NIED could rest on a fiduciary relationship, and whether plaintiff had to allege physical impact in a NIED claim.
      • Law: NIED
      • Facts: Plaintiff sued defendant doctors and hospital following their performance of an ultrasound on plaintiff and her fetus in which they reported the test results as normal. Following the test, plaintiff gave birth to a son with “several profound physical abnormalities.” As a result, plaintiff alleged defendants negligently misrepresented the test results resulting in severe emotional trauma at the birth of her child for which she was unprepared, and which manifested itself in physical symptoms thereafter.
      • Outcome: The court found plaintiff could state a claim for NIED without alleging physical harm if the claim relied on a breach of fiduciary duty or contractual relationship. The court was evenly divided on the question of whether plaintiff had stated a claim, resulting in the affirmation of the lower court’s ruling.
    2. Emekekwue v. Offor, No. 1:11-CV-01747, 2012 WL 1715066, at *6 (M.D. Pa. May 15, 2012)

      • Procedural posture: Defendant moved to dismiss Plaintiff’s claims.
      • Law: NIED, IIED, libel
      • Facts: Plaintiff brought suit against Defendants, members of the Obosi Community Association of New York, Inc. (“OCA”) stemming from comments circulated among OCA members on an email chain regarding the Plaintiff’s application for death benefits from his ex-wife’s passing. The emails from OCA members, and other members of the public, argued against his receipt of death benefits and stated, “In conclusion, let’s call a spade a spade. [Plaintiff] took away Vanessa’s medical insurance which would have enabled her to continue her medical treatment at Johns Hopkins University where they were familiar with her cancer. She had no choice but to go to the State hospital in Pennsylvania. He was very proud of this and had no problems informing all and sundry how she would soon die. It’s pathetic that he wants to gain financially from her death. Please stop begging OCA and ODA to pay you for your ex-wife’s death. ENOUGH ALREADY.” Plaintiff brought suit, alleging the statements falsely imputed his ex-wife’s death to him, would lead a reader to believe that he attempted to extort money from the OCA, and that he bragged about facilitating her death. Plaintiff alleged that from these statements he and his family suffered such distress to cause them to seek counseling.
      • Outcome: The court dismissed the claim of NIED, noting the plaintiff suffered no physical injury or threat thereof, nor did the plaintiff have a special relationship with the OCA so that the OCA owed plaintiff a special duty of care. (For defamation and IIED, see above.)
    3. Okane v. Tropicana Entm’t, Inc., No. CIV.A. 12-6707, 2013 WL 56088, at *2 (E.D. Pa. Jan. 3, 2013)

      • Procedural Posture: Defendant moved to dismiss the amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
      • Law: NIED, IIED
      • Facts: Plaintiff, suffering from a schizophrenic episode, was recorded stealing two gaming chips from a roulette table in a casino by the casino’s internal security cameras. The casino ejected plaintiff from the premises and made an “ejection report” for its internal files. The casino, after a period of nearly 5 years, wrote to plaintiff restoring plaintiff’s gaming privileges and included a notification of the existence of the ejection report. Plaintiff claimed upon the receipt of the letter plaintiff suffered severe emotional distress, and the refusal of the casino to remove the record has caused plaintiff ongoing emotional distress.
      • Outcome: The court dismissed the NIED claim, finding no evidence of a “preexisting relationship[] involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.” The court noted, “[i]t is simply not foreseeable that a reasonable person would experience severe emotional damage from the maintenance of an internal security record of an event that, in fact, occurred” and the duty of care owed plaintiff by the casino did not provide the necessary relationship for a NIED claim.
  4. Practice Pointers

    • Under Pennsylvania’s latest adopted version of the NIED claim, a plaintiff can sue a defendant for the emotional distress caused by the breach of the defendant’s fiduciary or contractual relationship with plaintiff. The Court limited the applicability of a special relationship NIED claim “to preexisting relationships involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach” where “the special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being.”2 The Court declined to list the relationships that would qualify as such, but mentioned the doctor-patient relationship as eligible for inclusion.

    • The Supreme Court has expressly denied the requirement that a plaintiff prove physical injury in a NIED claim, requiring plaintiffs instead demonstrate “the genuineness of the alleged emotional distress, in part, by proving the element of causation.”3

  1. Okane v. Tropicana Entm’t, Inc., No. CIV.A. 12-6707, 2013 WL 56088, at *2 (E.D. Pa. Jan. 3, 2013) (citing Toney v. Chester Cnty. Hosp., 961 A.2d 192, 197–98 (Pa. Super. Ct. 2008), order aff’d by equally divided court, 36 A.3d 83 (Pa. 2011)). 

  2. Toney v. Chester Cty. Hosp., 614 Pa. 98, 117 (2011). 

  3. Toney v. Chester Cty. Hosp., 614 Pa. 98, 123–24 (2011) (noting “[u]nlike cases involving a physical impact, a plaintiff in a non-impact case faces a more difficult task of convincing a court of the legitimacy of the emotional distress and the causal nexus between the negligent action at issue and alleged distress.”).