orangecup wrote: Confused7 wrote: orangecup wrote: Hutz_and_Goodman wrote: orangecup wrote:
stronitsing wrote:Does anybody know whether physical symptoms are needed or not for near miss NIED? I know they're not for bystander NIED - but everything I read says something different
For direct actions, physical manifestations are required. For bystander actions, severe emotional distress alone is sufficient.
Is a bystander allowed to bring a NIED if not a family member?
In NY, no (for MBE, yes).
In NY, I thought bystanders can still bring NIED action even without physical injury if: 1) a special duty is owed to P and it is breached even if no risk of physical harm to P, and 2) If a duty is breached and P is at an unreasonable risk for physical harm. The 3rd situation is when the bystander is closely related to the victim, witnesses injury to the victim, and is in the zone of danger. This is based off my Themis notes.
Hmm, Kaplan never covered that; I looked in the large outline, and those aren't mentioned. We just learned the in NY, bystander NIED attaches where the P is in the zone of danger, P suffers severe emotional distress, and the V is an immediate family member of the P.
You may very well be right, but maybe it's just something that won't be tested so Kaplan decided not to cover it.
Ah, that's fair. For what it's worth, here's the section from Themis in the unlikely event that any of us can stuff more facts into our brains.
New York Point of Law: Recovery for Negligent Infliction of Emotional Distress
New York allows recovery for negligent infliction of emotional distress without physical injury under three circumstances:
i) A special duty owed to the plaintiff is breached, but there is no threat to the plaintiff’s safety or fear of personal harm (e.g., hospital informed the plaintiff—incorrectly—that her mother had died; hospital performed autopsy on the plaintiff’s son over her objections);
ii) A breach of a duty of care to the plaintiff that creates an unreasonable risk of physical harm to the plaintiff (e.g., ski-lift operator failed to secure the plaintiff in his chair); or
iii) The plaintiff witnesses an injury to an immediate family member (e.g., parent, child, sibling, spouse) while in the zone of danger created by the defendant (e.g., the plaintiff witnessed her child killed by a car driven by the defendant that also exposed the plaintiff to a risk of physical harm).
See Kennedy v. McKesson Co., 448 N.E.2d 1332 (N.Y. 1983).