Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress


Reasons For Establishment

As stated above there were many criticisms of Intentional infliction of emotional distress. In certain cases, there was no basis to seek damages even if the claimant had experienced serious emotional distress and most frequently, it was found that there was no intention to inflict emotional distress but it occurred because of the tort-feasor ‘s negligence. This did not, however, excuse the torture feasers from exercising their proper duty of care to avoid causing emotional distress. Since this would not fall within the field of deliberate emotional distress infliction, it was found that there was a need to add a new field, which is reckless emotional distress infliction.

Consider the case where a person is experiencing extreme emotional distress due to almost crashed aircraft he was traveling in. The pilot had no intention of causing an emotional trauma like this. But it has caused severe emotional distress and a victim has every right to be compensated for that. In Boyles v Kerr, Boyles has videotaped his sexual experience with Kerr along with his colleagues. Boyles showed this to some of his friends at the time but it was never circulated to the public. Word of the tape leaked out however and as a result Kerr experienced serious emotional distress.

In this case it is very evident that Boyles did not want to cause emotional pain on Kerr. It could be argued that there was forseeability that there was a strong likelihood that Kerr could suffer emotional distress by showing the tape to others. In this case’s dissenting opinion, Justice Doggett states the following about forseeability “. In deciding whether the defendant was under a duty, the court must consider several interrelated factors, including the severity, predictability, and probability of injury balanced against the social benefit of the actor ‘s conduct, the extent of the responsibility of guarding against the injury, and the implications of putting the defendant on the charge.

Of all these considerations, risk predictability is “the primary and overriding aspect …” It could also be argued that as Kerr’s boyfriend Boyles had a duty of care not to cause emotional harm on her. When he reported the sexual experience without Kerr ‘s permission, the responsibility increased manifold. Therefore Boyles had a duty of care that Kerr would not be affected by the tape he so received. This suggests that Kerr’s infliction of emotional distress was due to Boyles’ neglect. Yet the courts do not want to see it as a negligent mental distress infliction.

Courts have always sought to keep up with changes in society in social , political , cultural, and technical terms. The dissenting opinion lambasted the majority in not accepting negligent infliction of emotional distress as wrong. What happened to the previous pronouncements of this court that the principle of duty in common law is not static or unchanged, but must adapt to reflect current social circumstances and advances in technology? “But the establishment as a ground of negligent infliction of emotional distress has also come under considerable criticism.

Drawbacks And Criticism

The creation of intentional emotional distress infliction as a cause of action for filing a tort case has met with many critiques. For Boyles v. Kerr, the majority opinion held that “… an alternative cause of action for involuntary emotional distress infliction would require actions far less egregious than that occurred here, and such systematic torture is not appropriate to require justice in a genuinely horrific case such as this, “Therefore, the intentional infliction of emotional distress was seen to be too broad and may in many cases bring non-severe emotional distress under its purview, letting the floodgate of litigation open. This seemed to be one of the key reasons the general opinion in Boyles declined to accept as a ground insensitive infliction of emotional distress.

In the concurrent opinion of Justice Gonzalez in Boyles v Kerr, there was also concern that creating wrongful infliction of emotional distress could open up house owners’ home insurance in Texas to recover any damages. Damages arising from acts of negligence may be reported against home insurance of homeowners in Texas and that may prove to be a further reason for increased litigation if this is opened up as a cause of action for bringing a tort lawsuit. There is also the possibility of limitless liability when such a justification has been identified.

It can be seen that negligent emotional distress infliction has its fair share of criticisms. The floodgates of lawsuits appears to be opening up, and courts are deeply divided as to their effectiveness.


Limiting Negligent Infliction Of Emotional Distress

When it was first adopted, unintentional emotional distress infliction was seen as evidence of how well the courts respond to evolving culture and technology. However, the potential for limitless liability, the possibility that wrongful infliction could open the floodgates of lawsuits and that just about everyone could be found to have a duty of care not to cause emotional harm on a third party led the same courts to try and rein in the situation before things got out of control. It has resulted in some innovative ideas, some not so innovative ideas and some imaginative verbal jugglery.

Several courts have adopted the principle of criminally negligent emotional distress infliction to limit the kind of harm which can be sued on this independent ground. Many states which implemented negligent emotional distress infliction have ended up abolishing it, such as the State of California. State like Florida has tried to restrict the land by implementing the “Law of Impact”. The state of Arizona and some other states have adopted “the bodily injury statute” to restrict this ground and some states have come up with some not-so-novel restricted alternatives, such as the State of Hawaii’s “same island rule.” Having developed as an independent ground wrongful infliction of emotional distress, the court realized the unlimited liability that could be asserted under this new ground in Kelley v. Kokua Sales and Supply, Ltd. The court created the “proximity rule” which effectively said the plaintiff must have physical proximity to the accident. In Kelly, when he was in California, the father of one of the victims of an accident was told by telephone from Hawaii of the accident. He had a heart attack, and died. His estate sued the truck’s owners and drivers who caused the crash, but the court interpreted the “proximity law” that disallowed this argument as if the emotional distress was more if the father had learned about it when he was in Hawaii than when he was in California.

In Boyles v. Kerr, the courts refused to recognize involuntary emotional distress infliction as an alternative cause of action specifying several of the same reasons. The court argued that there were ample grounds, such as intentional infliction of emotional distress, intentional privacy violation, which will provide relief to Kerr and need not create separate ground for this case. All this shows the uncertainty that reigns over the courts about how to deal with unintentional mental distress infliction.



Negligent infliction of emotional distress tends to be quite possible, as is apparent from most courts’ attempt to try to make it a workable model. The court’s claims in Boyles v. Kerr are true. The restatement of the deliberate emotional distress infliction is about malicious or careless conduct. As the court explained in Burk Royalty Co. v. Walls, related terms are ‘reckless neglect’ and ‘gross negligence.’ Hence it can be argued that deliberate infliction of emotional distress often involves criminally negligent infliction of emotional distress. It will also potentially mean that claims against the home policy which would cover gross negligence charges would be recovered. Therefore the basis of deliberate infliction of emotional distress tends to be adequate to defend against emotional distress infliction without opening the doors too wide for a flood of litigation. In Boyles v. Kerr, 36 Tex. Sup. Ct. J.” the majority strongly declares that “judicial resources” will be “strained.” At 233, with the trivial, the trivial, other pure “intimate” affairs of the heart. 855 Hence the restatement of deliberate infliction of emotional distress tends to resolve the concerns of controlling the litigation floodgates.


All these things do need to be looked at from the intimate relationships perspective. Does a person expect his or her spouse to be privy? Does a person have a higher obligation than an ordinary passer-by not to inflict emotional distress on his spouse? In Twyman v Twyman, this was addressed, the court held that “married couples share an intensely personal and intimate relationship. When discord occurs, it is likely that in the case of intimate relationships the parties will experience emotional distress, sometimes serious. “Therefore, the issue of whether infliction of emotional distress is in itself actionable seems to be a valid question. While it is true that emotional distress is part and parcel of married life, I disagree with the court in respect. Only because there is expected to be emotional distress in a marriage, each partner should not be absolved of an increased duty of care to ensure there is no significant emotional distress inflicted. Such an obligation is expected of a marriage partner to ensure the smooth functioning of a family which is the foundation block of society. Once again, the restatement of deliberate emotional distress infliction will adequately resolve the issue.
Looking at this in an Indian context, the Delhi Public School MMS scandal, RK Puram which rocked the nations, seems to have striking similarities to the Boyles v Kerr case. But in India, a girl will bring a case against her ex-boyfriend for causing emotional distress or breaching her privacy is unimaginable. The publicity that a case like that would carry is enough to stop any girl or woman from coming out and suing the child. It would also be some time before the girl will get justice because of the pendance of cases, meanwhile her entire life will be tainted by unnecessarily prolonged hearings uncovering the most personal information. In fact, this took the form of a criminal case, and arrested the boy who made the video tape, as well as’s CEO, the site where this clip was auctioned.

For the aforementioned reasons, opening such a ground for litigation in India may not yield many positive outcomes, atleast in the area of intimate relations. Although it may not be immediately used much, establishing a ground for infliction of emotional distress could help empower women further and help them seek justice against the infliction of emotional distress



Intern at Lawportal,


Jagran Lakecity University, Bhopal !st Year

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