The Historical Evolution of Negligent Infliction of Emotional Distress

  1. Introduction

This article examines the history of negligent infliction of emotional distress (NIED) and mental anguish jurisprudence. The courts have historically been reluctant to allow for recovery of emotional injury in the absence of physical injury.[1]

To this day, tort law continues to distinguish sharply between physical harm and emotional harm, with emotional harm being the marginalized sibling. Yet advances in science and medicine no longer support such a distinction.  Whether cautiously accepted or flatly rejected, the tort of NIED has evolved apart from physical science and medicine. NIED has evolved largely ad hoc, case by case and state by state, and not, for the most part, in a logical or coherent progression over the long term. Meanwhile science progresses more cogently, one discovery building upon the next. To date, the jurisprudence and science of mental anguish have done little to inform one another. Yet the concept that there be any contemporaneous entity that is required to accompany emotional harm has been and remains awkward and misfit.

American tort doctrine widely recognizes that “an actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”[2] That proposition supports the existence of the general theory liability in negligence. But no equivalent proposition arises with respect to emotional harm. Instead, the story of liability for negligently inflicted emotional harm, in the absence of apparent physical harm, is one of ever changing pragmatic liabilities and limitations which continues to elicit new suggestions for analysis and disposition.[3] Mental anguish jurisprudence has experienced a tumultuous evolution in American common law. Stand-alone claims for infliction of emotional distress have expanded significantly over the last fifty years, though those claims are grounded in narrow veins of historical precedent. By and large, neither traditional nor contemporary approaches to common law tort treat emotional harm and physical harm in parity. The Restatement (Third) of Torts treats emotional harms apart from physical harms, requiring a demonstration of “serious” emotional harm before the claim may proceed.[4] In distinguishing bodily harm from emotional harm, the Restatement notes that “[u]sually the existence of bodily harm can be verified objectively while the existence and severity of emotional harm is ordinarily dependent on self-reporting.”[5]

Without some objective measure – a physical impact – to verify that the defendant’s conduct caused harm to the plaintiff, issues of fraud and the absence of an adequate measure of damages prevented judicial control of these actions and denied recovery. Subsequently, the general trend has been to relax this requirement and to permit recovery in the absence of a physical impact when the emotional harm is accompanied by either a physical harm or other objective evidence corroborating the emotional distress.[6] Other strategies have transpired, and included the relinquishment of contemporaneous physical impact or post-event objective consequences, and have imposed a temporal proximity as a limitation.[7] For example, other jurisdictions use proximity as an independent variable – the test being whether the injured party was in a zone of risk.[8] Still another perturbation has been to ask whether the emotional injury was foreseeable.[9]

The following section examines the underlying public policy considerations that have been the driving force leading to the current state of NIED jurisprudence. Next, the historical evolution of NIED is framed as a function of the rules that have limited NIED. We then briefly discuss how NIED commonly attaches to other torts by way of the ‘parasitic claim.’ Finally, NIED has become a Gordian knot of arbitrariness and complexity – a confusing but particularized specialty. We therefore consider one of the multitude of specialized areas of NIED, not as an independent tort, but within the general tort of negligence, and specifically within medical negligence, which involves the usual duty and causation elements.


  1. Policy Limitations—Legitimacy, Litigation, and Administration

However articulated, the law of negligent infliction of emotional distress (NIED)

[I]s fundamentally concerned with striking a balance between two opposing objectives: first, promoting the underlying purpose of negligence law–that of compensating persons who have sustained emotional injuries attributable to the wrongful conduct of others; and second, avoiding the trivial or fraudulent claims that have been thought to be inevitable due to the subjective nature of these injuries.[10]


The challenge is to refine “principles of liability to remedy violations of reasonable care while avoiding speculative results or punitive liability.”[11] Negligent infliction of emotional distress is an important field in tort law, because it implicates important social interests, for which the common law has evolved bright lines that stem from competing policies.[12] After more than a century of judicial and scholarly analyses, nearly all states recognize a right to recover for NIED in some form.[13] Presently, two states, Arkansas and New Mexico, purport not to recognize NIED at all.[14] Meanwhile California courts have been a key battleground over recognition of NIED as a cause of action.

Recovery for emotional distress has historically been difficult in this country and recovery for the negligent infliction of emotional distress was completely denied under the common law.[15] Several policy arguments are advanced against a general, unrestricted cause of action for NIED, in parity with negligence in the infliction of physical injury: (1) emotional distress is remote from, and not proximately caused by, a negligent defendant’s actions;[16] (2) mental distress cannot be quantified like other types of physical harm to the body or to property, thus recognition of such an elusive cause of action would inevitably result in falsified claims;[17] (3) recovery for emotional injury claims would lead to significant increases in defendant liability, often in amounts disproportionate to defendant’s culpability[18]; and (4) emotional distress claims lacked precedent and to suddenly recognize NIED as a theory would open the floodgates.[19]

The great majority of debate concerning NIED analysis focuses on the extent to which intangible injuries should be compensated, which have involved a few primary policy considerations: ineffective judicial administration, fraudulent claims and limitless liability.[20]


  1. Judicial Administration and Fraudulent Claims[21]

Inherent within the overarching problem of ineffective judicial administration is the potential for fraudulent claims. The problem of fraudulent claims rests on the sufficiency of proof for emotional injuries and the adequacy of the law in addressing emotional injuries.[22] The presence of emotional distress is not an issue, rather, the issue is the severity of the distress.[23] At times, the solution has been for courts to hand off the determination to juries.[24] Of these, some courts considered this a medical question that juries would be incapable of comprehending. From this, it was felt that expert medical testimony would suffice. However, the jury is often left with conflicting testimony from both plaintiff and defendant.[25] Thus, the judicial system is forced to differentiate between plaintiffs who are genuinely harmed by a negligent act, and those who are mistakenly convinced they suffer from harm.[26]


  1. Limitless liability

The problem of unlimited liability is often recognized as perhaps the most lasting of the policy concerns at issue in NIED cases. The concern is founded on the “recognized possibility of genuine claims from the essentially infinite number of persons who might suffer real emotional harm as a result of a single instance of negligent conduct.” The New York Court of Appeals, confronting the issue of bystander recovery in Tobin v. Grossman, stated:

The problem of unlimited liability is suggested by the unforeseeable consequence of extending recovery for harm to others than those directly involved in the accident. If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined. It would extend to older children, fathers, grandparents, relatives, or others in loco parentis, and even to sensitive caretakers, or even any other affected bystanders.[27] However, the New York court’s analysis is probably too simplistic. It is surely possible to distinguish between those relationships that involve close familial ties, cohabitation, and day-to-day interactions and those that do not.

However, the New York court’s analysis is probably too simplistic. It is surely possible to distinguish between those relationships that involve close familial ties, cohabitation, and day-to-day interactions and those that do not. Some authorities advocate an approach that focuses on the relationship between the plaintiff and defendant.[28] If a pre-existing relationship exists, the next inquiry is whether the defendant has acted culpably. When the claim rests on the breach of some independent duty, such as medical malpractice, then the malpractice establishes the defendant’s liablity for NIED. If the action is a “pure”[29] claim, then courts should ask whether the conduct causing the emotional distress is sufficiently outrageous to give rise to liability.[30]

Mental distress is clearly problematic to quantify. In my view, the central issue arising from these points and counterpoints is one of proof of injury. There is little doubt that as a society we would be inclined to compensate negligently inflicted emotional distress if we could have confidence in a plaintiff’s evidentiary satisfaction of some agreed-upon threshold of severity. Courts generally have been progressive in this very mindset, understanding the dynamics of emotional-injury claims and requisite corroboration in an effort to preserve and protect human dignity. Yet even in cases in which plaintiff’s experience of emotional distress is beyond doubt, courts are reluctant to impose liability for fear of setting a hazardous precedent. Courts have not been confident that reliable measures exist to ensure that the severity of a plaintiff’s suffering recognized in one case can serve as precedent for the different plaintiffs and different facts of future cases. In other words, stare decisis, like science, can reach credible conclusions only when results can be duplicated. The problem for the legal system, then, has been that, historically, neither social nor clinical science offered the ability to measure emotions and to place them on a scale of severity. In the absence of any such methodology, one might as well rely on a roll of dice as on a jury verdict.

At the same time, there is a perversion of logic in rejecting emotional-injury recovery outright, as a matter of law. There is no doubt that people can experience severe emotional injury, and that that injury can be inflicted as the proximate result of a negligent act. The problem of emotional-injury recovery is factual, not legal. If a framework existed in which emotional distress could be diagnosed and quantified, much the same as physical injury, then the same calculation of social contract that underpins the general negligence cause of action would support NIED. “NIED” simply would be negligence, the injury element being satisfied with confidence regardless of its physicality or emotionality. Otherwise stated, the impact rule would be satisfied by impact, physical or emotional, without resort to an ancillary device such as a bystander rule. Policy objections would be quelled, because evidence would operate upon extant principles, and there would be no exaggeration in the risk of fraud.

In fact, the evidentiary building blocks for this framework already exist.  Commentators have observed that the same issues that preclude an NIED cause of action—such as subjectivity, immeasurability, and the potential for fraud—have long arisen in connection with the pain-and-suffering damages associated with physical injuries. These consequential damages have not concerned the courts so urgently, because the satisfaction of the threshold physical-injury requirement inspires a superior level of confidence that the alleged, consequential pain and mental anguish occurs are real and will be measurable by jurors, who are informed by ordinary life experience.[31] The same is true of parasitic claimants, such as a plaintiff-decedent’s family in a wrongful death claim.  Their mental anguish is regarded as credible, contingent as it is on the very physical death of a loved one, though courts and policymakers do exhibit an incremental augmentation of circumspection in these claims relative to the added degree of personal attenuation. Yet despite the courts’ solicitousness of these credible claims of emotional injury, and willingness to submit these claims to jurors for verification and valuation, the attendant evidentiary problems of quantification and measurement remain the same.[32]

         When courts indulge plaintiff theories of NIED, they manipulate ordinary negligence principles to accommodate these concerns. A patchwork of rules operates in this limiting vein, and their origins can be traced through various historical threads of doctrine. Especially important in this regard are limiting principles of duty. At the broadest level is the rule of no duty, which holds that in most of everyday life’s interpersonal interactions, one person—whether my grocery-store cashier or my torts professor—owes another person—me—no independent duty to exercise reasonable care to avoid the infliction of emotional distress. On its face, evidently, this rule is the inverse of the rule that pertains to physical-injury avoidance between casual interactors. Where physical risk is concerned, the one owes the other a duty of reasonable care—when driving, manufacturing a product, or practicing medicine. This latter imposition of reasonable care is said to reflect the innate or fair expectations under the unwritten social contract. Avoidance of accidental infliction of emotional distress is not so plainly incorporated into the social contract, though it is hardly fair to say the rule is absent. When courts soften the negligence doctrine to recognize actionable theories of NIED, they are recognizing instances in which imposition of the duty of care is consistent with social expectations.

Multistate norms of tort law come closest to recognition of actionable NIED in two classes of cases. First is the person who is physically injured, perhaps only slightly, or narrowly escapes physical injury, and suffers emotional distress as a result. Second is the bystander who witnesses harm to another and suffers emotional harm as a result.[33] The first scenario has been expressed through the “the impact rule,” for slight or greater physical injury, and “the zone of danger rule,” for the narrow escape.  The second scenario is expressed through “the bystander rule.”[34]

  • Impact Rule

NIED’s modest birth happened in the shadow of the impact rule. At first blush, NIED and the impact rule are at odds. Animating the injury requirement of negligence, besides duty, breach, and causation, the impact rule requires that the plaintiff have suffered physical injury (physical impact) to her or his person, thus precluding a pure action for NIED.[35]  However, under the impact rule, emotional distress that is consequential to physical impact, also proximately caused by the defendant’s negligence, is compensable.[36]  Thus the impact rule allows recovery for NIED, provided that physical injury occurred.[37]

An unusual case both demonstrates the impact rule and demonstrates how it can be stretched to permit an NIED recovery.  In Condor v. Wood,[38] in Indiana, the plaintiff witnessed a truck hit her friend as the pair walked across the street. To prevent the driver from running the truck’s tires over the victim, the plaintiff pounded on the side of the truck to get the driver’s attention. The plaintiff sued for NIED. Had the case concerned the friend, the impact rule would have pertained plainly to allow recovery for both physical injury and consequential emotional distress. The plaintiff’s case under the impact rule was less clear. The court held that the requisite impact occurred when the plaintiff pounded on the truck—a physical impact resulting proximately from the negligent conduct of the driver, even if attenuated through the volitional act of the plaintiff.[39] The impact rule thusly satisfied, the plaintiff was entitled to recover for emotional distress that was inflicted as a result of negligence.[40]

In American case law, an early imposition of the impact rule as a limiting doctrine can be found in an oft-cited 1896 case, Mitchell v. Rochester Railway Co.[41] A young, pregnant woman, the plaintiff was awaiting her turn to board a horse-drawn buggy when an oncoming buggy passed by closely. Frightened, as the facts recounted, she fainted, had a miscarriage, and became ill.[42]  The court opined a phrase subsequently often quoted, that “[a] fright cannot form the basis of an action.”[43]  Otherwise, the court reasoned, a flood of litigation” would result.[44] Thus when a plaintiff in negligence complains only of emotional distress, absent physical impact or injury, there can be no recovery.

At the turn of the century, Mitchell was influential on the development of common law in other states. The impact rule became the standard in negligence law for decades, representing a compromise between prohibition on emotional-distress recovery for all plaintiff, including the physically injured and credibly suffering, and unbridled emotional-distress recovery, as might open the floodgates to fraudulent claims.[45].  While arguably working a generous fairness to physically injured plaintiffs, the rule arguably worked an unfairness to those who suffered mental anguish credibly, but without physical impact.  Over time, courts attempted to ameliorate unfair results by incrementally liberalizing their understanding of what qualified as “physical” impact. For example, Georgia plainly required physical impact to the plaintiff, causing physical injury to the plaintiff, and mental suffering or distress in the plaintiff resulting from that physical injury.[46]  Subsequently, Georgia liberalized its rule to permit recovery when a plaintiff’s mental anguish results from witnessing physical injury to a loved one.  Such attenuation of physical impact from one person to another would later give rise to “bystander” recovery.[47]

  1. The “Corpse Cases”

During this time period, there were early extensions to the impact rule involving the mishandling of dead bodies. This exemplifies an extension to the impact rule, in the deceased is mishandled, but a cause of action (resembling a parasitic claim) on behalf of the next of kin is permitted. This concept sits neatly on the fence between direct impact and wrongful death, thus exposing the arbitrariness of the impact rule.

If a body is mishandled, the courts have been lenient in allowing for mental anguish.[48] Alternatively, if one misses the burial and attending ceremony of a loved one, there is little doubt that emotional distress results.[49] The courts were willing in these cases to acknowledge emotional distress in these sorts of cases. It seems that the duty assumed by a mortuary or other party in custody of the body expressly or impliedly is a duty to take care for the feelings of the survivors. Mishandling a dead body foreseeably affects their welfare. Consequently, it is not surprising to see that some states have entertained a claim for emotional distress by survivors when bodies were mishandled.[50] An interesting note is that such corpse cases also have overtone of quasi-property by way of tortious interference with corpses, also allowing for standing for the decedent’s survivors.[51]

The courts’ rationale for NIED damages in the corpse cases is easily justified. First, the contractual relationship imposes a duty on the funeral director to the plaintiff. Thus, the harm and the damages were limited to the people who entered into the contract, which limited the payouts of damages to close relatives of the decedent. But the corpse cases suggest something more. The death of a relative is an emotionally charged time, which eliminates any doubt as to the genuineness of the NIED claim. This unusual, highly emotional scenario with limited participants precludes endless liability.

  1. Ambiguity of the Impact Rule

Historically the impact rule has been applied in various ways. Under the common law, a witness to negligent conduct had to show that he or she experienced both physical and emotional trauma – in a temporal manner which is fluid – while witnessing the infliction of injury to the primary victim.[52] Inherently ambiguous, the impact requirement refers to both the witness’s physical injury and to the actual impact on the primary victim.[53] While the requirement for physical manifestations of emotional distress is designed to guarantee the genuineness of the emotional distree claim, in the end, there are important outstanding issues: (1) there is no clear-cut rule that exists regarding the type of NIED claim in which proof of physical manifestations of emotional distress is required; (2) many jurisdictions substitute the concept of physical manifestations of emotional distress for the direct physical impact requirement; and (3) the proof of physical (3) in yet other jurisdictions, proof of physical manifestations of emotional distress remains a distinct manifestations of emotional distress remains a distinct element in all types of NIED cases.[54]


  1. Zone of Danger

A neat logical extension of the impact rule arose to allow NIED liability in “zone of danger” cases.  The “zone of danger rule” is expansive to the impact rule by avoiding the requirement of contemporaneous physical impact or injury and allows a plaintiff to recover for mental distress in those cases in which the “impact rule” would deny recovery.[55] This rule limits claims for emotional distress in a consistent manner by substituting the requirement of actual impact with the requirement of being near the danger.[56]

The “zone of danger rule” permits plaintiffs to recover for mental suffering manifested in physical injury provided that they were within the zone of danger to their physical well-being at the time that they sustained the fright, shock, or mental distress giving rise to their claim.[57]

The basic premise of the “zone of danger rule” is to liberalize the foreseeability boundaries of the “impact rule,” substituting “actual impact” with a “reasonable fear of impact” as a prerequisite for recovery.[58] The rule provides was with the boundaries that duty to avoid NIED out to be commensurate with the duty to avoid creating unreasonable risks of physical harm.[59]

Although allowing recovery in a much broader range of fact patterns than the “impact rule,” courts using the “zone of danger rule” employ limiting elements in an attempt to prevent frivolous claims.[60] The zone-of-danger rule is predicated on the foreseeability of a person’s fear for her or his own safety.[61]  To satisfy the injury requirement in negligence, a plaintiff claiming NIED through zone-of-danger recovery must prove that “she: (1) was within the zone of danger of physical impact [created by the defendant’s negligence]; (2) reasonably feared for her own safety; and (3) [consequently] suffered severe emotional distress with attendant physical manifestations.”[62]

A definitional case on zone of danger is Amaya v. Home Ice, Fuel and Supply Co., in which the California Supreme Court opined that “justice requires effective administration[,] … [and] justice cannot exist when a tortfeasor’s liability is unlimited.”[63]  In Amaya, a mother witnessed her infant struck by the defendant’s ice truck, but was not in danger of being struck by the truck herself.[64]  The court concluded that the plaintiff’s failure to allege a physical impact on her own person was not fatal to her claim. However, the court rejected the plaintiff’s cause because she was not within the “zone of danger” at the time her son was struck.[65] In creating a zone-of-danger rule, the Amaya court also required that a plaintiff claiming emotional distress must demonstrate discernible and deleterious physical symptoms as a proximate result of a “close call.”[66]

New York courts further constrained zone-of-danger recovery in the companion cases, Bovsun v. Sanperi and Kugel v. Mid-Westchester Industrial Park.[67] Jack Bovsun was driving a car that became disabled. He exited the car and walked to its rear when he and his car were struck by defendant’s vehicle, and he was seriously injured.[68] In the car, Bovsum’s wife and daughter were not physically injured and did not see, but did feel, the impact.[69] They knew that Bovsun must have been injured and saw him injured immediately thereafter.[70] In the companion case, Kugel, plaintiffs and their two children were injured in a motor vehicle accident. One of the children died a few hours after the accident.[71] Reversing the lower courts, the Court of Appeals allowed plaintiffs’ claims for emotional distress, upon having witnessed the injury or death of family members, to proceed in both cases.[72] The zone-of-danger approach has been adopted by most jurisdictions and is supported by the Restatement (Second) of Torts §436.[73]


  1. Bystanders

In Amaya, the plaintiff, as a bystander, was unable to recover for NIED due to lack of fear for her own safety.[74] After this decision, courts increasingly began to question the bystander zone of danger requirement. Courts found it difficult to distinguish between bystanders who feared for their safety and those who did not possess such fear. Courts reasoned that distinguishing between bystanders within and outside the zone of danger was arbitrary in most cases.[75] Due to the difficulty, courts adopted the foreseeability test as the method to determine whether a bystander should recover for NIED.[76] Foreseeability became the standard because “[i]t is just as foreseeable that an individual outside of the zone of danger will suffer genuine distress as a result of seeing a loved one seriously injured.”[77]

The relative bystander test was established in the California Supreme Court’s landmark decision, Dillon v. Legg.[78] In Dillon, a mother witnessed her minor daughter, a pedestrian crossing the street, struck and killed by a negligent motorist. The zone-of-danger rule would not allow the mother’s recover, because she was not in the street with her the girl at the time of impact.  The court determined that the zone-of-danger” test was too restrictive, stating, “the concept of the zone of danger cannot properly be restricted to the area of those exposed to physical injury; it must encompass the area of those exposed to emotional injury.”[79] The court expounded a test of “reasonable foreseeability.”[80] If the defendant should reasonably have foreseen injury to the plaintiff, then recovery is allowed.[81]  Foreseeability is guided by three factors: (1) whether plaintiff was located near the scene of the accident, in contrast with someone a distance away; (2) whether the plaintiff’s shock resulted from a direct emotional impact upon the plaintiff from contemporaneous sensory observation of the accident, in contrast with learning of the accident after its occurrence; and (3) whether the plaintiff and the victim were closely related, in contrast with no relationship or only a distant relationship.[82]  In this case, Dillon was with her daughter as she was crossing the street. The final element is whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.[83] The direct emotional impact must be physically manifested. In Dillon, the California Supreme Court was unable to ascertain whether the plaintiff’s emotional distress resulted from the accident, and therefore reversed the trial court’s grant of summary judgment.[84]

The court applied the newly formulated test to find that a mother could recover for NIED as a bystander if the distress arose at the same time as the negligent act.[85]  The Dillon test, focusing on foreseeability, means to create a logical nexus between the defendant’s conduct and the plaintiff’s emotional injury. The factors refine the reasonableness of the foreseeability, providing a framework in which finders of fact can determine with reliability and consistency whether a plaintiff’s emotional injury could have been foreseen reasonably by an “ordinary man under such circumstances.”[86] Although the result of Dillon was the relative bystander test, the Dillon factors were not the court’s last word.

The first case to abandon the physical manifestation requirement and replace it with a “direct victim” nomenclature was Molien v. Kaiser Foundation Hospitals.[87] In Molien, the court stated: “In no other area are the vagaries of our law more apparent than in the distinction between mental and emotional distress accompanied by physical manifestation and such discomfort unaccompanied by physical manifestation.”[88]

In addition, the court held emotional distress should be compensated when a reasonable man would be unable to adequately cope with the mental stress engendered by the circumstances of the case.[89] In Molien, a physician erroneously diagnosed a woman’s condition as syphilis and advised her to have her husband examined for the disease.[90] Because syphilis is a sexually transmitted disease, the wife naturally suspected her husband of engaging in extramarital activities, and that suspicion led to the dissolution of their marriage.[91] The husband, who had no direct contact with the doctor or hospital where the wife was treated, sued for NIED as a result of the misdiagnosis.[92] Invited to bar the plaintiff from recovery for lack of physical impact or injury, the court held that the risk of harm to the plaintiff was reasonably foreseeable, thus actionable.[93] Precisely reflecting the circumstances as they had unfolded, the court reasoned that the husband of a woman misdiagnosed with a sexually transmitted disease was a foreseeable victim of the negligent diagnosis.[94]  Mrs. Molien had suffered physical injury, because she endured bodily invasive treatment for syphilis.[95]  Mr. Molien was a sort of bystander to that physical impact, but his suffering resulted more from the dissolution of the marriage than from witnessing that impact.[96]  Critically, the Molien court did not tether itself to the Dillon analysis, nor with certainty even to physical injury; rather, the court viewed Dillon’s factors as mere guidance in the determination of foreseeability, which was held up the essence of the test in all circumstances, for all claims, whether NIED or conventional physical-injury negligence.[97]  Moreover, the court held that the degree or seriousness of emotional distress presented a question for the trier of fact,[98] thus minimizing the need for the plaintiff to prove any physical syptomology.[99]

The distancing of foreseeability analysis from the event of physical injury in California, per Molien, was progressive and positive. The Molien approach acknowledged that the bright-line physical injury requirement in negligence law is both over-inclusive and under-inclusive.[100] The requirement is over-inclusive in that permitting recovery for emotional distress that results from in any physical injury casts too wide a net, implicating all the policy objections to emotional-distress compensation upon the arbitrary market of physical impact, however slight—and even mere proximity to physical impact under the zone-of-danger rule.  The requirement is under-inclusive in that it fails to embrace emotional consequences, such as Dillon’s, upon which fact-finders could hardly disagree. Moreover, parasitic recoveries such as loss of consortium and wrongful death became well accepted in the twentieth century and are difficult to distinguish from bystander recovery.  Acknowledging foreseeability as the controlling concept cures the over- and under-inclusiveness problem.

By shifting the focus to foreseeability, Molien blurred the distinction between a bystander and a direct victim. Both the wife and husband were victims; Mr. Molien simply stood somewhat farther removed than Mrs. Molien from the defendant on the timeline, or chain of causation. When the only question is the reach of foreseeability, which is a function of both duty and causation, the difference between a direct victim and an indirect victim dissolves. This understanding is significant, because it outlived Molien’s dicta regarding Dillon.

A threshold requirement remained that emotional distress absent physical injury be “severe,” under Dillon,[101] or “serious,” under Molien.[102]  Unfortunately, the terms severe and serious are ill-defined. The Hawaii Supreme Court found serious emotional distress when “a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.”[103]  The reasonable-person standard has elsewhere been rejected as up to the job of measuring emotional distress because of the wide variability in the capacity of individuals to withstand trauma. Emotional injury is certainly a function of experience, mindset, and disposition. Susceptibility varies with each person. So the Hawaii approach may be criticized for leaving rough edges in need of a shine.

The full breadth of the Molien holding anyway was not to stand the test of time (as yet).  Twenty-one years after Dillon, the court against revisited the rule in reigned it back in, in Thing v. La Chusa.[104]  In Thing, a mother heard that her son had been struck by a car, and she rushed to the scene, there finding him bloody and seemingly near death.[105]  The California Supreme Court—in part owing to social and political shifts both in its composition and in society as whole—determined that Dillon had strayed too far from its narrow confines as initially conceived.  Accordingly, the plaintiff was denied recovery for failure of physical impact and failure, under Dillon, to bear contemporaneous witness to the physical impact on her son.[106]  Reasonable foreseeability, according to the court, was excessively flexible and permissive of bystander recovery, the court opined.  Dillon survived Thing, but the court reigned in Dillon, reverting it from a multi-factor inquiry to a strict, three-part conjunctive test, thus requiring contemporaneous witness.[107]  Molien also survived Thing, but only in its thin rationale as a “direct victim” case,[108] as Molien was rearticulated and rescued by its author, Justice Stanley Mosk, concurring in Thing.[109] Like the corpse cases, Molien involved a particularly emotion-laden subject: venereal disease. Also, like the corpse cases, Molien involved a relationship of trust which was disrupted when the doctor made the erroneous diagnosis.

At present, only a few courts have recognized an free-standing cause of action for NIED, or at least signaled receptivity to pure NIED as a liability theory. For example, in Rodriques v. County of Hawaii, plaintiffs won an award in the trial court for property damage and mental suffering produced by the negligent failure of state employees to prevent flooding that damaged the plaintiffs’ new home.[110] On appeal, the court rejected any dependency of plaintiffs’ recovery on a theory of liability “parasitic” to property loss.[111] Instead the court boldly gave “independent legal protection” to “the interest in freedom from negligent infliction of serious mental distress,” recognizing a distinct duty to refrain from such infliction.[112]

  1. Unpacking the Dillon Approach

As construed in Thing, Dillon manages the risk of excessive liability through rigorous application its contemporaneity and close-relation requirements.  Thus, construction of these requirements controls the circumference of the aperture through which the courts permit NIED claims.  Courts tend to equate “closely related” with immediate-family relationships in the common law veins of blood, marriage, and adoption.[113]  Immediacy is limited to “relatives residing in the same household, or parents, siblings, children, and grandparents of the [physical] victim.”[114]

Some states, such as New Jersey, expand the definition of closely related to include intimate relationships such as betrothed partners or cohabitants.[115] Opinions diverge especially once the facts leave the household behind, and results vary upon the virtually endless iterations of relationships.[116] In Leong v. Takasaki, the Hawaiian court held that a young boy’s step-grandmother was a “close relative,” owing in part to Hawaiian family traditions, while the engaged but unmarried partner of a victim was not “closely related.”[117] In a Nevada case, a passenger in an automobile who witnessed the death of her sister-in-law in a roll-over accident was considered “closely related,” because of the closeness and duration of their relationship.[118]  These cases are difficult to reconcile, even accepting variation upon their facts.

Three policy rationales support constraint of the “closely related” requirement: “(1) promoting the strong state interest in the marriage relationship; (2) preventing an unreasonable burden on the courts; and (3) limiting the number of persons to whom a negligent defendant owes a duty of care.”[119]  The need for certainty in the law supports a bright-line rule establishing boundaries for “closely related.” At the same time, certainty and consistency should not be weighed so heavily as to generate results that fly in the face of logic on the facts of one case.  The broad range of human relationships that might be said fairly to propagate foreseeable mental anguish leaves the “closely related” analysis somewhat lacking in rational justification.[120]  The legal status of a relationship—consider same-sex partners in a jurisdiction that rejects gay marriage—is hardly determinative of a deep emotional bond.[121] It is, after all, the depth of the emotional bond that provides the policy rationale and the quantum basis for recovery. Legal status seems all the more arbitrary with regard to the position of the liable defendant, whose liability arises irrespectively of the familial relationships of the plaintiff, as much in a case of pure NIED or bystander recovery as in a case of loss of consortium or wrongful death.  Meanwhile consanguinity does not necessarily implicate emotional depth, rendering the courts susceptible of the very fraudulent claims that the legal-status standard set out to preclude.  A rigid requirement of a marital or consanguineous relationship therefore seems an ill fit with the objectives of bystander recovery.[122]


  1. NIED Claims Premised on Medical Malpractice

In the medical malpractice area, NIED manifests across the array of conventional medical negligence claims. Hence there are a multitude of medical scenarios that often give rise to varying iterations of the historic rules.[123] Examples include medical malpractice as the proximate cause of a mother giving stillbirth[124], complications of medical procedures[125],negligent psychiatric care[126], and false HIV reporting.[127] The scenarios are endless, and so too are the ad hoc rules that have developed, which are typically driven by the facts surrounding the circumstances.[128]

Pure NIED does not usually appear as a cause of action, because emotional distress by itself cannot suffice as injury in negligence. Nevertheless, the constraints of the conventional framework, overshadowed as it is by the impact rule, shows fraying at the edges.[129] Though no NIED per se doctrine has emerged, courts dealing with the everyday facts of medical malpractice scenarios have reached for solutions to work around the harshness of the impact rule.[130] These cases emerge against a backdrop of advances in diagnostic medicine, which has vastly improved the potential of objective evidence to prove emotional distress as a scientific matter.[131] The combined effect of these modest trends in jurisprudence and science is an uptick in courts’ willingness to allow bystander recovery to plaintiffs who witnessed the acts or consequences of medical malpractice.

A review of medical malpractice/NIED cases focused on emotional distress suggests that a dichotomous rubric of “bystander” and “direct victim” provides a useful conceptual framework. Bystanders typically are non-patients and not the persons who suffer physical injury as a result of medical malpractice. At times, a claimant may be able to recover for emotional distress even if no physical injury results. “Direct victims” are those who have suffered a direct impact in a psychological sense by the acts of malpractice, although often they may not have suffered a physical injury in the traditional sense. A direct victim may be a nonpatient, such as Mr. Molien, or may in fact be a patient of the defendant practitioner.[132]

Some courts have used these labels specifically, while other courts have announced rules or simply reached results that treat claimants differently depending on whether they are bystanders or direct victims.[133]  Unfortunately, there is not a great deal of consistency from jurisdiction to jurisdiction in the use of this terminology. Because there is a lack of uniformity in terminology across jurisdiction, study of these cases requires careful analysis of facts of the cases.[134]

  1. The “Direct Victim” in Medical Malpractice

As of today, many states recognize some form of “direct victim,” or related “direct involvement,” theory of NIED liability.[135] The direct-victims approach can be traced to Molien.[136] Direct victims suffered “impact,” if psychological, as a result of medical malpractice, but not physical injury in the conventional sense.[137]

Direct-victim on Molien facts requires the extension of defendant-practitioner’s duty as not to cause emotional distress to a reasonably foreseeable plaintiff, even if the plaintiff is not a patient. The Molien approach leaves open for a state to decide whether there must be a predicate physical injury to an intermediate actor, as in the unnecessary syphilis treatment of Mrs. Molien.  Many jurisdictions have softened any requisite connection between the emotional injury and a predicate physical injury,[138] which makes sense.  The reasonable-foreseeability test suggests that the intervening physical injury is persuasive, but not dispositive, in establishing foreseeability.  The unusual facts of supposed sexually transmitted disease amid the intimate relationship of marriage makes for a modest push on foreseeability, leaving uncertain how far the direct-victim approach might otherwise range.  And while different in principle, the direct-victim approach is not easily distinguished from a bystander analysis.[139]

By 1989, between Molien and Thing, some courts in California began to identify direct victims through the lens of preexisting common law relationships. These include the relationships between spouses and primary blood relatives.[140] A duty is now said to exist between the health care provider and the relative or spouse.[141]  In Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., two mothers and their respective sons went to defendant’s clinic, where both boys were sexually molested by a therapist.[142] The mothers sued for NIED, alleging that “the molestation of their sons had caused them serious mental and emotional suffering and further disruption of their family relationships.”[143]  Both recovered upon a direct-victim theory.[144]  The majority compared the Marlene F. plaintiffs to Mr. Molien,[145] stating that “the counseling was not directed simply at each mother and son as individuals, but to both in the context of the family relationship.”[146] The court held that “the mothers here were the patients of the therapist along with their sons, and the therapist’s tortious conduct was accordingly directed against both.”[147] According to the court, a preexisting relationship distinguished the mothers as direct victims rather than bystanders.[148]

Since 2003, Indiana has taken an innovative approach in applying direct-victim analysis, molding a “direct involvement” variation of NIED. The rule collapses the bystander and impact approaches, fits multiple fact patterns, and also widens liability exposure. The courts rationalized this reformed approach with reference to the diminishing significance of contemporaneous physical injuries in identifying legitimate claims.[149]  The Indiana approach continues to require a physical impact, but does not require the physical impact result in physical injury to the patient.  Thus in Alexander v. Scheid, the Indiana Supreme Court determined that a “physical change in the body,” resulting from the failure to diagnose an illness, constituted an impact sufficient to support a negligence claim.[150]  In Keim v. Potter, the plaintiff was negligently misdiagnosed with hepatitis C. Over a three-year period, the diagnosis caused the plaintiff severe emotional distress and precipitated the dissolution of his marriage.[151] Observing that the plaintiff suffered no direct impact, the Indiana Court of Appeals held nevertheless that “the plaintiff was sufficiently directly involved in the incident, giving rise to the emotional trauma that we are able to distinguish legitimate claims from the mere spurious.”[152] The Keim court held that medical misdiagnosis alone can support an NIED claim: “[W]here, as here, a patient claims emotional damages as a result of alleged medical malpractice, he is sufficiently ‘directly involved’ to satisfy the modified impact rule.  Keim is entitled to present his emotional damages claim to a trier of fact.”[153]

Massachusetts has its own version of direct involvement. The Massachusetts courts will entertain an NIED claim when: (1) the defendant was negligent; (2) the negligence caused the plaintiff to suffer emotional distress; (3) the distress either caused or was caused by some physical injury; (4) the physical injury was manifested by objective symptomatology as supported by expert medical testimony; and (5) the distress was reasonably foreseeable, either because the defendant was aware of some special factors rendering the plaintiff especially susceptible to distress, or because a reasonable person would have suffered distress under the circumstances.”[154]  Previously there had been no recovery in Massachusetts for emotional distress because of the usual concerns of “unjust claims.”[155]   However, in 1978, the Supreme Judicial Court overruled prior case law and permitted recovery for emotional distress upon “both a substantial physical injury and proof that the injury was caused by the defendant’s negligence.”[156] Subsequently, the court permitted NIED in medical negligence claims and also circumscribed the requirement of objective evidence of physical manifestations of emotional distress. The court requires plaintiffs to advance only “enough objective evidence of harm to convince a judge that their claims present[ed] a sufficient likelihood of genuineness to go to trial.”[157]   In 2001, the Massachusetts Appeals Court allowed emotional-distress damages upon evidence of depression, nightmares, cramps and shortness of breath.[158]


  1. The Direct Victim Rule – Current Perspective

The direct victim rule originated as an adjunct to foreseeability analysis,[159] but the concept has spread to jurisdictions and has surpassed zone of physical danger rule in many of them[160]. While the courts have applied this concept in a variety of situations without defining what the concept means, it appears in my view to allow recovery for psychological injury suffered by a “target” of malpractice or other negligence when there is no direct physical impact causing an injury or even physical injury resulting from the emotional distress. Defining who is or is not a direct victim, however, is highly result-oriented and the courts may label the plaintiff a direct victim to avoid the restrictions of either the zone of physical danger rule or the foreseeability rule.

  1. The “Bystander” in Medical Malpractice

Claims have been permitted in some circumstances for third parties, or “bystanders,” to acts of malpractice. However, courts have evinced reluctance in allowing bystander recovery, due to the barriers inherent to this mode of recovery (for example the observation requirement discussed infra).[161]  If with increasing exception, it remains the rule that bystanders cannot recover for NIED upon medical malpractice. Courts now recognize that with modern advances in diagnostic medicine, valid emotional injuries can be identified.[162]


  1. The “Observation” Requirement

The primary hindrance to recovery for bystanders in medical malpractice is exemplified by California law – that physical observation of a doctor’s negligent act must also be coupled with a contemporaneous awareness that the defendants conduct is causing the harm to the loved one.[163]  Most of the time, a family layperson will not have the skill nor the capability to decipher medical events de novo. The layperson, for example, will not recognize a ruptured aneurysm (since it occurs inside the body) or recognize the subtle physical manifestations; nor can she conceive of a cardiac event that transpires in a loved one contemporaneous to the event.


  1. Policy Considerations behind the Flexibility of the Bystander Rule

Contemporaneous awareness of medical events, therefore, has served to exclude bystander NIED as a mode for recovery in medical malpractice cases. In fact, the requirement for observance of a discrete and contemporaneous event has been the focus of many judicial opinions.[164] There is presently a wide variance in how the courts interpret this factor.[165] This variance results based on certain policy considerations.[166]  Medical procedures are inherently traumatic. When a loved one enters the hospital, even for a procedure or treatment that is routine from the hospital’s perspective, ordinary people feel scared, frightened, or nervous. The very nature of medical treatment is often traumatic to the layperson.[167] It is therefore difficult to establish a baseline emotional state from which departure is required to constitute damages.  An NIED cause of action could therefore result in compensation to plaintiffs for no more than the usual distress accompanying a hospital visit. Even when a medical procedure proves beneficial to the patient, such as an emergency resuscitation, the procedure might shock the senses of the ordinary bystander who witnesses it. A bystander may not be able to distinguish between medical treatment that helps the patient and treatment that is harmful to the patient, especially when treatment involves a balance of benefit and risk.[168] For this reason, the some courts hold that bystanders are at times precluded from recovery in medical malpractice cases.[169]

In the medical-malpractice setting, it is not always held necessary, indeed might be impossible, for the bystander to be “at” the scene of the injury-producing event.[170] Courts have held it sufficient for the bystander-plaintiff to be near the scene of the malpractice and witness to the consequences.[171]  Typically a bystander-plaintiff was at the hospital at the time of the injury-producing event, but not in the operating room, yet may establish a claim. Of course, relatives are rarely allowed to observe surgical procedures in hospitals.[172]  Further complicating contemporaneity, it is the layperson in the medical setting not recognizing the negligent act as causing injury. The California, Alaska, and New Jersey courts have recognized that a typical bystander cannot be expected to perceive medical negligence contemporaneously.[173] Even a physically injured plaintiff usually is not aware of the physician’s negligence at the time it occurs. Though a bystander eventually becomes aware of the injury-producing event, such as a transected artery, the bystander has no basis to distinguish the negligence of the physician from other possible causes.[174]

In response to this awareness issue, California has established two fact patterns upon which bystanders may claim NIED in medical malpractice. The first case is when a fetus dies or is injured as a result of a negligent act during delivery.[175] When a fetus dies, the patient is the fetus, not the mother. However, at that stage of life, the mother and the child are a “unique physical unit and the welfare of each is intertwined and inseparable,” the court opined, so the ensuing emotional distress of the mother is foreseeable.[176] The second case is when the wrong limb is amputated or incorrect organ removed.[177] Such medical errors are clear indications of gross negligence, and the genuineness of the emotional distress is not in question. Viewing of an unborn or stillborn fetus and the mother as one entity is an example of how the courts have stretched the direct impact rule to fit specific fact patterns.[178] The rationale used by courts is that the direct victim theory allows a court that has been fairly conservative about allowing claims for negligent infliction of emotional distress to permit recovery freely when it was outraged by the underlying allegations.[179]


  1. Analysis of the Bystander Rule

The multitude of approaches courts have taken in bystander NIED cases in the medical setting render unsettling inconsistencies.  In many jurisdictions, it remains unclear whether NIED should be an independent claim from medical negligence; when relationships are sufficiently close as to warrant bystander recovery; and how the contemporaneous-witness requirement should be construed in the medical-malpractice setting.

Notwithstanding courts’ reluctance, it seems clear that a bystander should be able to recover for emotional distress suffered as a result of a negligent act. The importance of redress for injuries outweighs policy objections to emotional-distress recoveries. Uniform legislation might offer a solution. There are certain characteristics of medical malpractice case that make them uniquely distinct. First, unlike personal injury where no emotional distress exists prior to the negligent act by the defendant, the bystanders in medical cases typically have a certain amount of distress prior to any negligence. Bystanders may be concerned and fearful at the time their loved one enters the hospital, before any medical procedure takes place.

Second, there is a higher duty of care owed by the health care provider in medical negligence cases than in personal injury cases. In a medical negligence case, the duty of care is that which would be exercised by a reasonable, similarly situated physician of minimal competence in the same or similar circumstances.[180] In personal injury cases, a person must use ordinary care to prevent harm to others.

Next, unlike personal injury cases, a physician makes a conscious and free choice in treating patients. He clearly is aware of the possible consequences if the duty is breached and negligence occurs during the treatment. He clearly undertakes a duty of care to patients. He knows (or should know) from experience that family members will likely suffer extreme distress and disturbance if there unnecessary complications to the patient. This, in itself represents a compelling argument in favor of separating out medical negligence cases and establishing independent NIED guidelines. There is a difference in the foreseeability and causation dynamic in medical malpractice cases as opposed to personal injury. Both foreseeability and causation become attenuated as the harm moves further away from the negligent act. On the other hand, in medical malpractice, once the physician creates a duty, it is clearly foreseeable that the patient (and close relatives) will suffer if the patient is injured by negligence. The foreseeable damages do not change temporally – it is foreseeable regardless of whether the harm occurs five minutes after the negligent act, or five days afterwards.

The class of plaintiffs who may recover for NIED is a straightforward issue and should be left to the courts. The candidates include the direct victim of the emotional harm. Bystander candidates include all of those whom the healthcare provider owes a duty of care, including friends and family of the victim. Again, the issue of who the actual candidate bystanders are can be readily identified. These inquires are amenable to procedural and evidentiary standards.

Any inquiry into the severity of emotional injury (to either the direct victim or bystander) remains the sticking point. The viewpoint is that emotional harm is subjective and not amenable to a working legal standard. The reality is that a diagnosis of emotional distress can be made using simple diagnostic techniques that are available. Medical experts may apply one of various standard procedures. There are several methods and procedures for evaluating the mental condition of an individual.


  1. A Simple Conceptual Alternative

More than likely, an shift in paradigm should be inquired into for NIED claims. The following is intended as a theoretical method to approach the problem methodically, it would be conducted by appropriate personell, and would utilize a knowledge-base that has existed for years. It is meant to suggest that involving outside groups who have previous addressed similar issues is a common sense concept. A grouping of tests may include the following:

(1) Conduct an interview to ascertain the nature and the history of the alleged mental disturbance; (2) Examine extrinsic evidence that tend to corroborate with the plaintiff’s allegations, such as information obtained from relatives, co-workers and those disinterested people who have observed the plaintiff both before and after the alleged distress; (3) Conduct a psychiatric examination to evaluate the behavioral, emotional and mental condition of the plaintiff; (4) Conduct a neurological examination to assess the condition and function of the central nervous system and the peripheral nervous system; (5) Conduct an internal medicine examination to evaluate the condition and function of the autonomic nervous system, and

(6) Integrate the findings of the conducted examinations to formulate a probability of the nature and extent of the emotional distress suffered by the plaintiff. A hypothetical scenario such as this may likely yield a reasonable sensitivity and specificity, while maintaining a reasonable predictive value (which would require empirical determination). While this is by no means a procedure ready to deploy, it is a conceptual framework that may be superior when compared to such things as physical manifestations requirements. It is likely that malingerers may pass through this battery of testing, however, those who have legitimate emotional harm would be included, and the probability of the floodgates opening is remote.

            Justification for inquiry into an alternative view is that the physical manifestations requirement is ineffective. the traditional physical injury requirement is both under-inclusive and over-inclusive.[181] These states are concerned that the physical manifestation requirement would not properly and effectively compensate plaintiffs. Opponents of the physical manifestation requirement claim that this standard allows claims for emotional distress where insignificant mental distress accidentally causes physical manifestation, and that it denies compensation to persons suffering from severe mental distress who fail to develop any physical symptoms.[182] Medicine may provide an improved solution for this potential problem.  There are likely victims who have suffered mental distress but may only have demonstrated nominal physical manifestations. The fact that there are no serious physical symptoms is indeterminant. This is an important fact that should be considered when determining the appropriate amount of damages. Also, there may be individuals who have suffered from several serious physical symptoms as a result of mental distress. By concentrating on the emotional distress of the plaintiff and tracing the distress through psychosomatic medicine principles, there exists the potential of a reasonable determination of the plaintiff’s mental distress. This could potentially provide the legal system with adequate or additional information to appropriately compensate the plaintiff with a reasonable degree of effectiveness. Courts can adjust the amount of damages to the extent of the plaintiff’s mental disturbance, thus ensuring that the plaintiff will receive fair and adequate compensation.

            A further advantage is that the proposed framework concentrates on objective findings. One reason the standard is objective is that it does not rely on the subjective judgment of other people comparing their own behavioral standards with the reaction manifesting in an individual plaintiff. 

A scientific approach is amenable to measuring of outcomes, and is therefore capable of providing the courts with reliable information to use in evaluating both the veracity and extent of N.I.E.D. injuries.

            If used to enhance the physical manifestation standard, evidence based on the principles of medicine can potentially assist the legal system in dealing with the problem of reliability of emotional distress more effectively. Again, it may still be possible for a person to lie about or fake certain symptoms, however, such methods will provide the courts with more objective and reliable information that could possibly be obtained. This evidence will at least be more reliable than the unworkable and highly subjective methods used by states that have abolished the traditional physical manifestation requirement.

As it stands, the case law in the field here treated is in an almost unparalleled state of confusion. Without a fundamental shift in paradigm, any attempt at a consistent exegesis of the authorities is likely to break down in embarrassed perplexity.


[1] Calvert Magruder, Mental and Emotional Disturbances in the Law of Torts, 49 Harv L Rev 1033 (1936)

[2] A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 915 (Neb. 2010) (citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7(a) (2010).

[3] E.g., Gregory C. Keating, Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 Wake orest L. Rev. 1131 (2009) (opining that rules for NIED liability in tort law are better seen as rules of proximate cause than as rules of duty).

[4] Restatement (Third) of Torts: Physical and Emotional Harm § 47 (2012).

[5] Id. § 47 cmt. a.

[6] See, e.g., Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812 (Del. Super. Ct. 2009) (plaintiff’s depression and anxiety constituted physical injury); O’Donnell v. HCA Health Services of New Hampshire, Inc., 152 N.H. 608, 883 (2005) (“To recover for emotional distress under a traditional negligence theory, we have consistently required plaintiffs to demonstrate physical symptoms of their distress regardless of physical impact.”).

[7] See Alexander v. Newman, 345 F. Supp. 2d 876 (W.D. Tenn. 2004); Williamson v. Waldman, 150 N.J. 232, 696 (1997) See also Richard Vanik, Emotional Distress for Fear of Exposure to AIDS: An Infection Headed for Texas, 32 Hous. L. Rev. 1451 (1996).

[8]See Clohessy v. Bachelor, 237 Conn. 31 (1996); Towns v. Anderson, 195 Colo. 517 (1978); Williams v. Baker, 572 A.2d 1062 (D.C. 1990); Graves v. Estabrook, 149 N.H. 202 (2003); Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980); Asaro v. Cardinal Glennon Memorial Hosp., 799 S.W.2d 595 (Mo. 1990); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D. 1972); Boucher By and Through Boucher v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992); See also Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994) (in which the Supreme Court interpreted the Federal Employer’s Liability Act to incorporate the zone of danger test for claims for negligently inflicted emotional injury).

[9] See Sacco v. High Country Independent Press, Inc., 271 Mont. 209 (1995); Croft by Croft v. Wicker, 737 P.2d 789 (Alaska 1987); Johnson v. Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283 (1990); Jarrett v. Jones, 258 S.W.3d 442 (Mo. 2008); Lockett v. New Orleans City, 607 F.3d 992 (5th Cir. 2010) (wife of arrestee could not reasonably have been expected to suffer severe, debilitating distress by seeing her husband in handcuffs).

[10] Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996).

[11] Portee v. Jaffee, 417 A.2d 521, 526 (N.J. 1980).

[12] Robert J. Rhee, A Principled Solution for Negligent Infliction of Emotional Distress Claims, 36 Ariz. St. L.J. 805, 808 (2004).

[13] Id.

[14] Id.

[15] See, e.g., Kramer v. Ricksmeier, 139 N.W. 1091 (Iowa 1913); Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

[16] See, e.g., Mitchell v. Rochester Ry. Co., 45 N.E. 354, 355 (N.Y. 1896), overruled by Batalla v. State, 176 N.E. 2d 729 (N.Y. 1961).

[17] See Mitchell, 45 N.E. at 354-55

[18] See, e.g., Amaya v. Home Ice, Fuel & Supply Co., 379 P.2d 513, 525 (Cal. 1963), overruled on other grounds by Dillon v. Legg, 441 P.2d 912 (Cal. 1968).

[19] See, e.g., Spade v. Lynn & Boston R.R. Co., 47 N.E. 88, 89 (Mass. 1897); Mitchell, 45 N.E. at 354-55.

[20] John L. Diamond et al., Understanding Torts 146, 268 (LexisNexis 3d ed. 2007)

[21] See generally Robert J. Rhee, A Principled Solution for Negligent Infliction of Emotional Distress Claims, 36 ARIZ. ST. L.J. 805, 831-42 (2004) for a complete discussion on policy and fraudulent claims.

[22] Amaya v. Home, Ice, Fuel & Supply Co., 379 P.2d 513, 520 (Cal. 1963) (citing Paul O. Proehl, Anguish of Mind Damages for Mental Suffering Under Illinois Law, 56 N.W. U. L. Rev. 477, 495 (1961)).

[23] See generally Wright v. Coca Cola Bottling Co, 414 N.W.2d 608, 609 (S.D. 1987) (recognizing tort of NIED but declining to articulate a standard with which to analyze severity).

[24] Id. at 616.

[25] See Allen v. Walker, 569 So.2d 350 (Ala. 1990)

[26] Id. at 363.

[27] Tobin v. Grossman, 249 N.E. 419 (N.Y. 1969)

[28] J. Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 STAN. L. REV. 1513, 1526 (1985); See also Virginia E. Nolan & Edmund Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from the Chaos, 33 HASTINGS L.J. 583 (1982)

[29] A “pure” NIED claim is one in which no other legal duty or standard of care exists. For example, in an NIED claim based on malpractice resulting in the stillbirth of a child, the negligent conduct is the medical malpractice. See, e.g., Carey v. Lovett, 622 A.2d 1279 (N.J. 1993). The standard for determining whether the emotional distress was inflicted negligently is rarely at issue in this type of case because the medical malpractice is the negligence that gives rise to the NIED claim. In a “pure” NIED claim such as that at issue in Boyles v. Kerr, Boyles violated no separate legal standard of conduct. 855 S.W.2d at 600. The claim was simply that Boyles’s actions in videotaping and showing the act of sexual intercourse to others itself negligently inflicted emotional distress. Id. at 594.

[30] This is the standard adopted by the court in Bro v. Glaser, 27 Cal. Rptr. 2d 894 (Cal. Ct. App. 1994). See, also, James v. Lieb, 375 N.W.2d 109, 115 (Neb. 1985) (emphasizing the relationship prong over the physical proximity prong); Dunphy v. Gregor, 642 A.2d 372, 376 (N.J. 1994) (broadening the relationship prong to include unmarried cohabitants); Portee v. Jaffee, 417 A.2d 521 526 (N.J. 1980) (noting that the “existence of a close relationship” is the crucial factor).

[31] Howard J. Kaplan, Bystander Recovery: A Policy Oriented Approach, 32 N.Y.L. Sch. L. Rev. 877, 885 (1987)

[32] Id. at 223.

[33] For a comprehensive discussion, see Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 WASH.L.REV. 1, 7-9 (1992)

[34] Id. at 9. The elements of the Dillon bystander standard have been given different emphasis and weight in various jurisdictions. See Comment, supra note 12, at 808 (discussing the varied applications of the Dillon test).

[35] The rise of the impact rule in America, 2 Stein on Personal Injury Damages Treatise § 10:30 (3d ed.)

[36] E.g., Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82, 85 (Ga. 2000).

[37] Id. at 109.

[38] 716 N.E.2d 432 (Ind. 1999).

[39] Id. at 435.

[40] Id. at 441

[41] 151 N.Y. 107, 109, 45 N.E. 354 (1896), overruled by Battalla v. State, 10 N.Y.2d 237 (1961)

[42] Id. at 109.

[43] Id. at 112.

[44] W. Page Keeton et al., Prosser and Keeton on the Law of Torts §10, at 43 (5th ed. 1984).

[45] Adopting states included Arkansas, St. Louis, I. M. & S. R. Co. v. Bragg, 69 Ark. 402 (1901);  Illinois, Braun v. Craven, 175 Ill. 401 (1898);  Indiana, Terre Haute E. R. Co. v. Lauer, 21 Ind. App. 466 (1899);  Kentucky, McGee v. Vanover, 148 Ky. 737 (1912);  Massachusetts, Spade v. Lynn & B. R. Co., 168 Mass. 285 (1897);  Michigan, Nelson v. Crawford, 122 Mich. 466 (1899);  New Jersey, Ward v. West Jersey & S. R. Co., 65 N.J.L. 383 (1900);  Ohio, Miller v. Baltimore & O. S. W. R. Co., 78 Ohio St. 309 (1908);and Pennsylvania, Ewing v. Pittsburgh, C., C. & S. L. R. Co., 23 A. 340 (Pa. 1892).

[46] Lee v. State Mutual Ins. Co., 272 Ga. 583 (2000)


[48] See Lions Eye Bank v. Perry, 56 S.W.3d 872, 874 (Tex. App.-Houston [14th

Dist.] 2001, no pet.) (relating that deceased’s eyes were harvested for organ donation with- out the consent of next of kin); Heikkila v. Harris County, 973 S.W.2d 333, 334-35 (Tex. App.-Tyler 1998, pet. denied) (discussing a case in which the misidentification of a mother’s deceased child resulted in the subsequent release of the child’s body to the wrong mother).

[49] See Loper v. W. Union Tel. Co., 70 Tex. 689, 691-92, 8 S.W. 600, 601-02 (1888) (discussing a case in which parents of deceased child failed to get his urgent message con- cerning his rapidly failing health and were not present for his death or burial); W. Union Tel. Co. v. McGaughey, 198 S.W. 1084, 1085 (Tex. Civ. App.-Beaumont 1917, writ ref’d) (relating a case in which a negligently handled telegram caused a mother to be unable to view her son’s remains and attend his funeral).

[50] See Christensen v. Superior Court, 54 Cal. 3d 868 (1991) (particularly abhorrent practices by mortuaries, including harvesting of organs for sale, but liability turned on the assumed duty, not the horrible acts); Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4 (Nev. 2010). See also Guth v. Freeland, 96 Haw. 28 P.3d 982 (2001) (morgue left a body unrefrigerated with resulting decomposition, held, duty of reasonable care owed, and statute forbidding emotional distress recovery resulting from harm to property had no application); Cochran v. Securitas Security Services USA, Inc., 2017 IL 121200 (Ill. 2017) (recognizing a cause of action for negligent interference with the right to possess a corpse, holding that emotional distress damages are available in such a claim without fulfilling the zone of danger requirements for a stand-alone NIED claim).

[51] 15 Am. Jur. Proof of Facts 3d 53 (Originally published in 1992)

[52] See, e.g., Knaub v. Gotwalt, 220 A.2d 646, 647 (Pa.1966) (immediate family members could not recover for mental shock and anguish caused by seeing their son/brother struck by automobile because they had not also suffered physical injuries); Bosley v. Andrews, 142 A.2d 263, 267 (Pa.1958) (husband could not recover for anguish caused when he witnessed wife being chased by defendant’s bull because husband did not suffer any physical harm).

[53] Sinn v. Burd, 486 Pa. 146, 152 (1979)

[54] Phyra McCandless, Eliot Tracz, James A. Wells, Kim Kocher, Marc L. Penchansky, & Mark T. Smith, Recent Developments in Medicine and the Law, 49 Tort Trial & Ins. Prac. L.J. 325, 348 (2013)

[55] Colleen Wilcox Heidenreich, Clarifying California’s Approach to Claims of Negligent Infliction of Emotional Distress, 30 U.S.F. L. Rev. 277, 284 (1995).

[56] Id. at 288.

[57] Id. at 289.

[58] Plummer v. United States, 580 F.2d 72 (3d Cir.1978) (stating that the focal point of the “zone of danger” test is the foreseeability of injury to the plaintiff).

[59] 1 MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS § 5.13, at 5-25 (1992 & Supp. May 1992). (providing that liability for negligence will not be “disproportionate to fault.” Id. at 6-7. 

[60] Daley v. LaCroix, 179 N.W.2d 390 (Mich. 1970); Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980); Fournell v. Usher Pest Control Co., 305 N.W.2d 605 (Neb. 1981). These cases illustrate the physical illness or injury requirement as expressed by courts of different jurisdictions that employ the zone of danger rule.

[61] Rickey v. Chicago Transit Authority, 457 N.E.2d 1 (Ill. 1983).

[62] Id. at 459

[63] 379 P.2d 513, 517 (Cal. 1963).

[64] Id. at 514.

[65] Id.

[66] Id. at 515.

[67] 461 N.E.2d 843 (1984)

[68] Id. at 846

[69] Id.

[70] Id.

[71] Id. at 848

[72] Id. at 850

[73] Sections 2 and 3 of the Restatement (Second) of Torts §436 (1965) state:  (2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability. (3) The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.

[74] Amaya, 379 P.2d at 525.

[75] Dillon v. Legg, 441 P.2d 912, 915 (Cal. 1968) (stating the zone of danger rule was arbitrary because it denied recovery based only on the difference of a few yards, despite the fact the plaintiff suffered distress similar to that of a person who had been within the zone of danger).

[76] Meredith A. Moore, South Dakota’s Interpretation of Negligent Infliction of Emotional Distress and the “Zone of Danger” Rule in Nielson v. AT&T Corporation: A Dangerous Hybrid, 45 S.D. L. REV. 379, 397 (2000).

[77] Id.

[78] Dillon, 441 P.2d at 921.

[79] Id.

[80] 924.

[81] Id.

[82] Id. at 920.

[83] Id.

[84] Id. at 922.

[85] Id.

[86] Id.

[87] 616 P.2d 813 (Cal. 1980).

[88] Id. at 819.

[89] Id. (stating this test is met when the debilitating mental distress affects an individual’s capacity to carry on the functions of life).

[90] Id. at 822.

[91] Id.

[92] Id. at 826.

[93] Id.

[94] Id. at 831.

[95] Id.

[96] Id.

[97] Id. at 841.

[98] Id. at 843.

[99] Id. at 844.

[100] Id.

[101] Dillon, 441 P.2d at 924

[102] Molien, 616 P.2d at 825.

[103] Rodrigues v. State, 52 Hawaii 472 P.2d 509, 512 (1970).

[104] 771 P.2d. at 829.

[105] Id.

[106] Id. at 833.

[107] Id.

[108] Id.

[109] 847.

[110] 823 F. Supp. 798, 799 (D. Haw. 1993)

[111] Id. at 802.

[112] United States v. Rodrigues, 103 F.3d 143, 148 (9th Cir. 1996)

[113] 98 A.L.R.5th 609 (Originally published in 2002)

[114] See Am. Jur. 2d, Fright, Shock, and Mental Disturbance § 29

[115] See McNemar v. Department of Public Health, 53 Mass. App. Ct. 1113 (2002); Dziokonski v. Babineau, 375 Mass. 555 (1978)

[116] 40 Causes of Action 2d 115 (Originally published in 2009)

[117] 520 P.2d 758, 763 (1974)

[118] Crippens v. Sav on Drug Stores, 114 Nev. 760, 761 (1998)

[119] Christopher P. Guzelian, Liability & Fear, 65 Ohio St. L.J. 713 (2004)

[120] David Paul Bleistein, Foreseeability in Chains: Towards a Rational Analytical Framework for Accident and Medical Malpractices Cases of Negligent Infliction of Emotional Distress in California, 29 LOY. L.A. L. REV. 343, 347 (1995).

[121] Leong, 520 P.2d at 772.


[122] Colin E. Flora, Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders, 39 Rutgers L. Rec. 28, 37 (2012)

[123] § 10:42. Medical malpractice—Bystander rule, 2 Stein on Personal Injury Damages Treatise § 10:42 (3d ed.)

[124] Pierce v. Physicians Ins. Co. of Wisconsin, Inc., 692 N.W.2d 558 (2005).

[125] Medical malpractice in connection with complications from a pericardiocentesis procedure to drain excess fluid which had accumulated in the sac around patient’s heart; physician came running down the hall during procedure to where parents were seated in hospital and told parents that patient’s heart had been punctured and that they needed to see their daughter, patient’s father told mother not to come inside room where patient was because “she couldn’t handle it,” patient’s father entered room and described chaos involving a tremendous amount of blood and observed a physician holding patient’s chest open while other physicians worked inside chest, and parents looked completely terrified and in shock and were not able to communicate what was going on except that father was in the room when “it all went bad.” Cooper v. Patra, 215 So. 3d 889 (La. Ct. App. 2d Cir. 2017)

[126] A nurse and hospital prematurely and improperly discharged patient, who was imminently suicidal and had a long-standing psychiatric history that was known to them, and who proceeded to take his own life shortly after discharge. Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558 (2015).

[127] Doe v. Arts, 360 N.J. Super. 492 (App. Div. 2003)

[128] 16 Am. Jur. Proof of Facts 3d 189 (Originally published in 1992)


[129]S. Rapp, Defense Against Outrage and the Perils of Parasitic Torts, 45 Ga. L. Rev. 107 (2010).

[130] Few jurisdictions still condition damages for negligent infliction of emotional distress on contemporaneous physical impact. Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991); Anderson v. Scheffler, 242 Kan. 857 (1988); Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980); Hammond v. Central Lane Communications Center, 312 Or. 17 (1991); Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 916 P.2d 241 (Okla. 1996); Peterson ex rel. Peterson v. Community Living Opportunities, Inc., 197 P.3d 905 (Kan. Ct. App. 2008), unpublished; Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007); Smith v. Toney, 862 N.E.2d 656 (Ind. 2007); Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007); Alternative Health Care Systems, Inc. v. McCown, 237 Ga. App. 355 (1999); Hoffman v. Stamper, 385 Md. 1, 38 (2005); Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999).

[131] 96 A.L.R.5th 107 (Originally published in 2002)

[132] 16 Am. Jur. Proof of Facts 3d 189 (Originally published in 1992)


[133] Id.

[134] See Burgess v. Superior Court, 831 P.2d 1197, 1199 & n.5 (Cal. 1992) (“In cases involving family relationships and medical treatment, confusion has reigned as to whether and under which ‘theory’ plaintiffs may seek damages for negligently inflicted emotional distress.”) (collecting California cases).

[135] 16 Am. Jur. Proof of Facts 3d 189 (Originally published in 1992)

[136] 616 P.2d at 817.

[137] See Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 562 (La.1990). Louisiana’s Supreme Court held that the defendant hospital owed the plaintiff an independent duty not to cause her mental pain and anguish. Id. at 570. Therefore, a cause of action was allowed for a wife’s emotional injuries sustained from the negligent infliction of injury to her husband. Id. The plaintiff-wife discovered that her comatose husband had sustained rat bites prior to her entering his hospital room. Id. at 562.

[138] See Conder v. Wood, 716 N.E.2d 432 (Ind. 1999) (requiring direct physical impact, but not to plaintiff, and not requiring that emotional trauma have resulted from physical impact and injury itself); Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999) (rejecting requirement of physical injury in addition to proof of reasonable foreseeability; rather, holding that proof may consist only of evidence of mental injury without physical manifestation); Audia v. Rossi Bros. Funeral Home, Inc., 748 N.E.2d 587, 594 (Ohio Dist. Ct. 2000) (dismissed without opinion, appeal not allowed); see also Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002) (observing trend toward abolition of physical-injury rule); Ware ex rel. Ware v. ANW Spec. Educ. Co-op. No. 603, 180 P.3d 610 (Kan. Ct. App. 2008) (requiring objective evidence of plaintiff’s emotional injury, such as nightmares, anxiety, nervousness, trembling, weight gain, and sleep difficulties, which did not themselves qualify as physical injuries).

[139] 16 Am. Jur. Proof of Facts 3d 189 (originally published in 1992). 

[140] Mobaldi v. Regents of University of California, 55 Cal.App.3d 573, 582 (2d Dist.1976).

[141] Id. 591

[142] 770 P.2d 278, 287 (Cal. 1989)

[143] Id. at 278.

[144] Id.

[145] Id. at 282.

[146] Id.

[147] Id. at 283.

[148] Id. at 284.

[149] Taele v. State Farm Mut. Auto. Ins. Co., 936 N.E.2d 306, 311 (Ind. Ct. App. 2010).

[150] 726 N.E.2d 272, 284 (Ind. 2000).

[151] 783 N.E.2d 731, 732 (Ind. Ct. App. 2003).

[152] Id. at 734.

[153] Id. at 736-37.

[154] Negligent infliction of emotional distress—Elements, 45 Mass. Prac., Employment Law § 7:37 (3d ed.).

[155] Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88 (1897).

[156] Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295 (1978).

[157] Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982).

[158] Kelly v. Brigham & Women’s Hosp., 51 Mass. App. Ct. 297, 306, 745 N.E.2d 969 (2001); see also Bresnahan v. McAuliffe, 47 Mass.App.Ct. 278, 282, 712 N.E.2d 1173 (1999) (allowing recovery upon stomach pain, headaches and loss of concentration).

[159] See Molien , 616 P.2d at 824.

[160] 16 Am. Jur. Proof of Facts 3d 192 (Originally published in 1992)

[161] see Ochoa v. Superior Court, 39 Cal.3d 159 (1985); Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990); Wargelin v. Sisters of Mercy Health Corp., 385 N.W.2d 732 (1986); Polikoff v. Calabro, 506 A.2d 1285 (Ct.App.Div.1986); City of Austin v. Davis, 693 S.W.2d 31 (Tex.Ct.App.1985).

[162] Kenneth B. Baren, Bystander Emotional Distress: Should Third Parties Recover Regardless of the Negligent Tort?, 25 J. Legal Med. 351, 360 (2004).

[163] Id.

[164] See Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 562 (La.1990). Louisiana’s Supreme Court held that the defendant hospital owed the plaintiff an independent duty not to cause her mental pain and anguish. Id. at 570. Therefore, a cause of action was allowed for a wife’s emotional injuries sustained from the negligent infliction of injury to her husband. Id. The plaintiff-wife discovered that her comatose husband had sustained rat bites prior to her entering his hospital room. Id. at 562.

[165] Id.

[166] Phyra McCandless, Eliot Tracz, James A. Wells, Kim Kocher, Marc L. Penchansky, & Mark T. Smith, Recent Developments in Medicine and the Law, 49 Tort Trial & Ins. Prac. L.J. 325, 340 (2013)

[167] Kenneth B. Baren, Bystander Emotional Distress: Should Third Parties Recover Regardless of the Negligent Tort?, 25 J. Legal Med. 351, 360 (2004).

[168] Doe v. Surgicare of Joliet, Inc., 643 N.E.2d 1200, 1202 (Ill. App. Ct. 1994).

[169] Healthcare Ctr. of Texas, Inc. v. Rigby, 97 S.W.3d 610, 621 (Tex. 2003).

[170] M.A. v. United States, 951 P.2d 851, 856 (Alaska 1998).

[171] Id.

[172] Gendek v. Poblete, 654 A.2d 970, 975 (N.J. 1995); Finnegan, 666 N.W.2d at 804.

[173] M.A., 951 P.2d at 856.

[174] Bird v. Saenz, 51 P.3d 324, 329 (Cal. 2002).

[175] Zavala v. Arce, 68 Cal. Rptr. 2d 571, 580 (Cal. Ct. App. 1997).

[176] Id.

[177] Id.

[178] See Zavala v. Arce, 58 Cal. App. 4th 915, 68 Cal. Rptr. 2d 571 (4th Dist. 1997). (A mother who prevailed, her stated cause of action against obstetrician for recovery of “direct impact” emotional distress damages in connection with stillborn fetus that was delivered two weeks and four days post term by alleging that she had physician-patient relationship with obstetrician for medical care for herself and her fetus during pregnancy, that obstetrician negligently breached a duty of care owed to mother and that such negligence caused unborn child’s death, that obstetrician’s negligence had caused her to suffer injuries to her health, strength, and activities, and that those injuries had caused and continued to cause her great mental, physical, and nervous pain and suffering.)

[179] Id.

[180] Hall v. Hilbun, 466 So. 2d 856, 868 (Miss. 1985)

[181] See James v. Lieb & Watts Trucking Serv., 375 N.W.2d 109, 116 (Neb. 1985) (holding that the requirement of a physical manifestation of the psychological injury may not be necessary given the capabilities of medical science and psychology)

[182] id.

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