The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Emotional Distress, Negligent Infliction

1 Elements and Case Citations

  1. Defendant owed Plaintiff a duty of care;
  2. Defendant breached that duty; and
  3. Plaintiff suffered damages as a proximate result of Defendant’s breach.

A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.   See Wong v. Jing, 189 Cal. App. 4th 1354, 1377 (2010).

The bystander theory recognizes a duty in the limited class of cases where a plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” . . . Direct victim theory involves a duty owed directly to 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.”

Spates v. Dameron Hosp. Ass’n, 114 Cal. App. 4th 208, 213 (2003).


Supreme Court of California:Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984-85 (1993).

California 1st Dist.: Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal. App. 4th 450, 477 (2012).

California 2d Dist.:Fortman v. Förvaltningsbolaget Insulan AB, 212 Cal. App. 4th 830, 834-35 (2013); see id. at 832 (elements for bystander theory).

California 3d Dist.: Spates v. Dameron Hosp. Ass’n, 114 Cal. App. 4th 208, 213 (2003).

California 4th Dist.: Brandwein v. Butler, 218 Cal. App. 4th 1485, 1520 (2013).

California 5th Dist.:Hurlbut v. Sonora Community Hosp., 207 Cal. App. 3d 388, 396 (1989) (elements of pleading of claim by “parent who witnesses the negligent infliction of death or injury on her child”).

California 6th Dist.:  Wong v. Jing, 189 Cal. App. 4th 1354, 1377-78(2010).


United States Court of Appeal for the 9th Circuit:  Doe v. Gangland Prods., 730 F.3d 946, 961 (9th Cir. 2013); see also Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004).

Central District: Whitehurst v. CVS Pharm., No. CV 13-6275 (ANx), 2013 U.S. Dist. LEXIS 167514, at *9 (C.D. Cal. Nov. 18, 2013); Mitan v. Feeney, 497 F. Supp. 2d 1113, 1126-27 (2008).

Eastern District: Howerton v. Earthgrains Baking Cos., No. 1:13-cv-01397-AWI-SMS, 2013 U.S. Dist. LEXIS 174280, at *19-21 (E.D. Cal. Dec. 12, 2013).

Northern District: Freeman v. United States, No. 13-cv-02421-WHO, 2013 U.S. Dist. LEXIS 160421, at *9-10 (N.D. Cal. Nov. 7, 2013).

Southern District:  Miranda v. Field Asset Servs., No. 3:11-cv-1514-GPC-JMA, 2013 U.S. Dist. LEXIS 90753, at *11-12 (S.D. Cal. June 27, 2013).

2 Defenses to Claim for Negligent Infliction of Emotional Distress

(1)    Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2)   Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years).

(3)   Privilege: The defendant’s conduct must be unprivileged. See Cote v. Henderson, 218 Cal. App. 3d 796, 806 (1990); Cal. Civ. Code § 47.

(4)   Refer to the affirmative defenses listed in the negligence chapter for additional defenses.

(5) Workers’ Compensation Preemption:  “So long as the basic conditions of compensation are otherwise satisfied (Lab. Code, § 3600), and the employer’s conduct neither contravenes fundamental public policy . . . nor exceeds the risks inherent in the employment relationship . . ., an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.”  Livitsanos v. Superior Court, 2 Cal. 4th 744, 754 (1992).