Negligent Infliction of Emotional Distress claim, also known as “NIED,” is a unique legal damage available to close family members of an injured child in California. Persons who witness injury inflicted upon someone with whom they have a close family relationship may have the legal right to recover damages on their own behalf for the resulting emotional trauma.
Here are the elements a parent needs to show in order to have a NIED claim in California:
1. Parent is closely related to the injury victim (here, this is a given in the case of parent and child). “Closely related,” under California law, means either through blood or marriage.
2. Parent is present at the scene of the injury-producing event at the time it occurs, and is at that time aware that it is causing injury to the child.
3. As a direct result, parent suffers “severe emotional distress.”
One example is of a mother who sees—witnesses—her child run over by an intoxicated, or negligent, driver of an automobile and then suffers a consequent emotional trauma such as anxiety, shock, or fright. In this example, the mother would have her own claim against the negligent driver, apart and separate from that of her child. This would also be true if the “innocent bystander” were a child of the victim.
I once represented a mother for negligent infliction of emotional distress when she witnessed her daughter suffer a severe stroke during a church service as the result of having taken a toxic pharmaceutical drug. The nexus between what the mother witnessed and the knowledge that she had about her daughter taking this pharmaceutical drug was what was needed in order to establish this unique type of claim. In another case, I represented a husband for negligent infliction of emotional distress when his wife was being attacked by a pit bull mix-breed dog.
Of course, this element of “closely related” is irrelevant if both parent and child suffer physical injury from the same injury-producing accident. If a parent is “putative,” which means lacking ties to the child either through blood or marriage, then ordinarily that parent is not considered “closely related.” However, this then brings up the question of whether foster parents are considered “closely related.” Right now, it appears the answer will be left to future case law in California.
Medical expense reimbursement is also a potential claim a parent may have in connection with his or her child’s injury case in California. A parent has legal standing to bring an independent action (or to join their injured child’s legal action) for medical expenses incurred in caring for the injured child.83 This includes not only out-of- pocket expenses due to the at-fault party’s negligent actions in causing the child’s injury, but also the reasonable value of home nursing care gratuitously furnished by the parent.
★INTERESTING POINT: It is clear that the California courts take child injuries very serious, and almost equate this type of damage to a “loss of consortium” claim between spouses. A loss of consortium claim is on in which one spouse has the legal right for compensation due to the injuries of another spouse because the injuries of the one spouse have significantly interfered with the marital relationship. Here, it seems the California courts are saying a parent can get compensation because the negligence of another party caused injury to the child that has significantly interfered with the parental relationship.
For "Research Bugs" and other lawyers: See: Snyder v. Michael’s Stores, Inc. (1997) 16 C4th 991, 998-1001, 68 CR2d 476, 480-481, 485. 81 Thing v. La Chusa (1989) 48 C3d 644, 257 CR 865; Dillon v. Legg (1968) 68 C2d 728, 69 CR 72. See Thing v. La Chusa, supra, 48 C3d at 667-668, 257 CR at 880-881 (emphasis added);Bird v. Saenz (2002) 28 C4th at 915, 123 CR2d at 468; see CACI 1621; BAJI 12.83. See White v. Moreno Valley Unified School Dist. (1986) 181 CA3d 1024, 226 CR 742 (victim’s parent); compare Wiley v. Southern Pac. Tranp. Co. (1990) 220 CA3d 177, 269 CR 240 (victim’s parent suing as guardian ad litem on victim’s behalf).
Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in a California accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.