Recovery For Negligent Infliction Of Emotional Distress Under California Law Gains A Greater Clarity

The recent decision in Wilson v. Southern California Edison Co., __Cal. App. 4th__, 2015 WL 522578, provides increased clarity into the California rule permitting claims for negligent infliction of emotional distress (NIED) by direct victims who do not suffer a physical injury. Direct victim cases are those in which the plaintiff's claim of emotional distress is not based upon witnessing an injury to someone else, but rather upon the violation of a duty owed directly to the plaintiff.1 will not survive unless the alleged breach of duty threatens an actual physical injury. Wilson holds that an NIED claim

NIED claims in California have bewildered both the plaintiff and defense bars for decades. Determining the set of circumstances sufficient to permit recovery for serious emotional distress caused by the negligence of another when there is no physical injury has proved to be a difficult task.2 While some states draw a bright-line rule requiring a physical injury as a predicate for an NIED claim, a rule intended to reduce the danger of false claims for pure emotional distress, this is not the rule in California.3

California has long permitted recovery for serious emotional distress without physical injury.4 The courts, however, recognize that a person's psychological reaction to an event may not be foreseeable and that pure psychological injuries are much more susceptible to being faked than physical injury.5 While California permits claims only in specialized circumstances, the case law does not provide a general rule for recovery. One California court described the uncertainty of injury and the danger of malingering in a pure emotional distress claim as follows:

One can always worry oneself sick, almost as a matter of will. The reality of psychological injury remains [] a subject of intense philosophical debate. There is always the suspicion that extending the tort duty gives plaintiffs an incentive to malinger or worry themselves into a state of depression. Suffice [it] to say for purposes of this case that certainty of injury is something that we do not have. Yes, the question of the reality of injury can go to a jury, but that is not the point. Psychological symptoms are much more susceptible to being faked than more palpable effects.6

The Lawson court quoted above recognized the lack of a general theory of recovery by stating, "[w]e will not attempt, in this opinion, to articulate any great general rules for emotional distress cases-the...