Forthcoming in 44 Wake Forest L. Rev. (Fall 2009).


Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive.

In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come to conceptualize NIED doctrine as a doctrine of proximate cause. Proximate cause doctrine takes the existence of obligation for granted, and addresses the extent of the defendant’s liability for breach of obligation. Proximate cause doctrine settles the scope of defendants’ responsibility when defendants have failed to conduct themselves as they should. When courts address NIED liability, they are asking whether and when liability for breach of an antecedently existing duty should extend to encompass the infliction of emotional harm. In accidents among strangers, the pertinent preexisting duty is the general tort obligation to exercise reasonable care in order to avoid otherwise foreseeable physical harm. Liability for emotional harm is parasitic on the prospect of physical harm. In cases where the parties have a preexisting relationship, the pertinent duties are imposed by other bodies of law (e.g., by contract law). NIED doctrine does not impose new obligations; it extends liability for breach of preexisting obligations.

The prospect of excessive liability is the central threat to a flourishing body of law imposing liability for negligently inflicted emotional distress. Conceptualizing NIED liability as proximate cause disarms this threat and arms courts with doctrinal tools devised to construct an appropriate domain of liability.


Consumer Protection Law | Law and Society | Torts

Date of this Version

March 2010