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3.12-2 Negligent Infliction of Emotional Distress
Revised to January 1, 2008
There are three elements that the
plaintiff must prove for a finding of negligent infliction of emotional
distress: 1) the defendant engaged in conduct that the defendant should
have realized involved an unreasonable risk of causing emotional distress
and that that distress, if it were caused, might result in illness or bodily
injury; 2) that the conduct caused emotional distress to the plaintiff; and
3) the distress was of such a nature as might result in illness or bodily
harm.
As to the first element, that is,
that the defendant engaged in conduct that the defendant should have
realized involved an unreasonable risk of causing emotional distress and
that that distress, if it were caused, might result in illness or bodily
injury, the plaintiff need not prove that the defendant intended to cause
any harm or distress to the plaintiff but only that the defendant should
have known that it was likely that a reasonable person under the
circumstances would be distressed by the conduct and that that distress
might result in illness or bodily injury. As to the second and third
elements, you must determine whether the plaintiff actually experienced fear
or distress, and if so, whether the fear or distress experienced by the
plaintiff was reasonable in light of the conduct of the defendant. If you
find that it was reasonable for the plaintiff to experience distress in
light of the conduct of the defendant, then the plaintiff is entitled to
prevail and you can go on to consider damages. Conversely, if any distress
experienced by the plaintiff was unreasonable in light of the defendant's
conduct, then you cannot find in favor of the plaintiff on this count and
you must return a verdict for the defendant.
If you find that the plaintiff has
proved all of the elements of negligent infliction of emotional distress,
you will find for the plaintiff and award damages on this count as I will
describe in the "damages" section of these instructions. If you find that
the plaintiff has not proved the elements of negligent infliction of
emotional distress then you will return a defendant's verdict on this count.
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