Bar Exam — MBE (Multistate Bar Exam)TortsMedium
A pedestrian was walking past a construction site when a crane operator, distracted by his phone, accidentally dropped a heavy beam. The beam narrowly missed the pedestrian, who, although physically unharmed, suffered severe emotional distress requiring psychological treatment. If the pedestrian sues the construction company for negligent infliction of emotional distress, which of the following is the most likely outcome?
- AThe pedestrian will not recover damages because emotional distress without physical injury is generally not compensable in negligence actions.
- BThe pedestrian will recover damages because the crane operator's negligence directly caused her emotional distress.
- CThe pedestrian will not recover damages because she was not physically impacted by the falling beam.
- DThe pedestrian will recover damages under the 'zone of danger' rule, as the beam narrowly missed her.
Show answer & explanationAnswer & explanation
Correct answer: D. The pedestrian will recover damages under the 'zone of danger' rule, as the beam narrowly missed her.
Many jurisdictions allow recovery for negligent infliction of emotional distress if the plaintiff was in the 'zone of danger' and suffered emotional distress as a result of the fear of physical impact. The pedestrian, narrowly missed by a heavy beam, was clearly within this zone.
Why the other options are wrong
- A. This is incorrect; while traditionally true, modern tort law, particularly with the 'zone of danger' rule, allows recovery for NIED without physical injury under specific circumstances.
- B. This is too broad; direct causation alone isn't always sufficient for NIED without meeting specific criteria like the zone of danger rule.
- C. While physical impact often strengthens a claim, the 'zone of danger' rule allows recovery without physical impact if the plaintiff feared for their safety.
Negligent Infliction of Emotional Distress (Zone of Danger)
A tort allowing recovery for severe emotional distress caused by another's negligence, even without direct physical impact, if the plaintiff was in the immediate 'zone of danger' of physical harm.
- Plaintiff must be in the 'zone of danger' of physical impact.
- Plaintiff must suffer severe emotional distress.
- Most jurisdictions require some physical manifestation of the emotional distress.
Memory trick: NIED: Fear in the Danger Zone