California Civil Jury Instructions (CACI)

1620. Negligent Infliction of Emotional Distress—Direct Victim—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/her] to suffer serious emotional distress. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was negligent;

2. That [name of plaintiff] suffered serious emotional distress; and

3. That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s serious emotional distress.

Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.

New September 2003

Directions for Use

The California Supreme Court has allowed plaintiffs to bring negligent infliction of emotional distress actions as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923 [167 Cal.Rptr. 831, 616 P.2d 813]); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).

The judge will normally decide whether a duty was owed to the plaintiff as a direct victim. If the issue of whether the plaintiff is a direct victim is contested, a special instruction with the factual dispute laid out for the jury will need to be drafted.

This instruction should be read in conjunction with either CACI No. 401, Basic Standard of Care, or CACI No. 418, Presumption of Negligence per se.

This instruction is for use if the plaintiff is a “direct victim” of defendant’s negligent conduct. If the plaintiff witnesses the injury of another, use CACI No. 1621, Negligent Infliction of Emotional Distress—Bystander—Essential Factual Elements.

Elements 1 and 3 of this instruction could be modified for use in a strict products liability case. A plaintiff may seek damages for the emotional shock of viewing the injuries of another when the incident is caused by defendant’s defective product. (Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587 [195 Cal.Rptr. 902].)

Sources and Authority

  • “ ‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence …’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ ” (Marlene F. v. Affıliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)
  • “ ‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038 [71 Cal.Rptr.2d 891], internal citations omitted.)
  • “[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional distress damages result from a duty owed the plaintiff ‘that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th 222, 230 [97 Cal.Rptr.3d 555].)
  • In a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury: “We agree that the unqualified requirement of physical injury is no longer justifiable.” (Molien, supra, 27 Cal.3d at p. 928.)
  • “[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp. 927—928.)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1004

1 California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.03 (Matthew Bender)

32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.11 (Matthew Bender)

15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress, § 153.31 et seq. (Matthew Bender)