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Kaplan tells me that a 3rd party IIED claim for an unrelated P requires P's presence, physical harm to P, and that D be aware of P's presence. I thought that all that was required for unrelated 3rd parties to bring an IIED claim was presence + physical harm (D doesn't have to be aware of P's presence).

Thoughts?

bissey wrote:Kaplan tells me that a 3rd party IIED claim for an unrelated P requires P's presence, physical harm to P, and that D be aware of P's presence. I thought that all that was required for unrelated 3rd parties to bring an IIED claim was presence + physical harm (D doesn't have to be aware of P's presence).

Thoughts?

Needs to be aware of P's presence, that is correct

IIED is an intentional tort. Intentional torts require intent or recklessness. Requiring D know of P's presence seems to get rid of the possibility that D can recklessly cause P physical harm through IIED. Why is that so?

You're getting IIED confused with negligence infliction of emotional distress, I think, or i'm misunderstanding the question

IIED = outrageous conduct causing severe emotional distress. no requirement of physical symptoms

negligent = two types. 1. Zone of danger cases (P in the zone of danger, suffers physical symptoms). 2. Bystander cases (P present, sees close family member get injured/almost injured, suffers physical symptoms)

bissey wrote:IIED is an intentional tort. Intentional torts require intent or recklessness. Requiring D know of P's presence seems to get rid of the possibility that D can recklessly cause P physical harm through IIED. Why is that so?

Intentional torts require that D have had intent. IIED is the ONLY intentional tort that allows recklessness to suffice. Keep that in mind. The BarBri lecturer on torts made a clever observation that stuck with me. The one intentional tort to have "intentional" in its name just happens to be the only one that doesn't necessarily require intent on the part of D. Again, recklessness will suffice, but that is true for NO other intentional tort.

Again, IIED is an either or proposition as to intent. Sure, in that one sub-case of IIED, only intent would suffice. The element is satisfied, and all is well. Just because the general definition of IIED intent typically allows for intent OR recklessness doesn't mean that either will suffice in every single permutation of facts.

I was having trouble with this too and what I did that worked was split it up into three categories
1. IIED.
2. NIED
3. Bystander liability

Don't have my notes handy to elaborate and i don't want to get it wrong, but try that out and see if it starts making sense.

Kaplan does seem to be a little inconsistent with this. I understand it the same way you do:

Third party IIED for a third party who is not closely related to the first party exists if (1) there was an IIED on the first party, (2) the third party saw it AND the defendant knew the third party was there, and (3) the third party suffered a physical manifestation.

If there's a close relationship between first and third party, then element three is no longer needed. However, I've also seen this written in a way that suggested that if an unrelated third party can recover if they witness it and experienced some physical manifestation, even if the defendant DIDN'T know the third party was present. I've seen it both ways, but I think the first is correct.

mness wrote:Kaplan does seem to be a little inconsistent with this. I understand it the same way you do:

Third party IIED for a third party who is not closely related to the first party exists if (1) there was an IIED on the first party, (2) the third party saw it AND the defendant knew the third party was there, and (3) the third party suffered a physical manifestation.

If there's a close relationship between first and third party, then element three is no longer needed. However, I've also seen this written in a way that suggested that if an unrelated third party can recover if they witness it and experienced some physical manifestation, even if the defendant DIDN'T know the third party was present. I've seen it both ways, but I think the first is correct.

I thought the IIED needed to be directed at the person bringing the 3rd party claim? (just the act needs to be towards the first party)