After a traumatizing incident, someone with a personal injury claim may be able to recover compensation for PTSD (post traumatic stress disorder). In most personal injury lawsuits claiming damages for PTSD, an attorney will employ the testimony from expert witnesses to help substantiate the claim. Testimony from expert witnesses for psychological damages can help demonstrate just how much the psychological effects are impacting the victim. In this blog, we will take a look at Nevada’s law regarding recovering damages for PTSD where no physical injuries were inflicted.
PTSD Damages: Nevada’s Law
Nevada provides three potential avenues for relief for individuals suffering from emotional injuries:
- bystanders that witnessed a family member suffer injury or death can allege a claim for negligent infliction of emotional distress (NIED; negligent infliction of emotional distress);
- individuals that do not satisfy the familial relationship requirement for a bystander NIED may be able to bring a direct NIED claim if they suffered emotional distress damages that caused physical injury or illness; or
- individuals can allege a negligence claim in which they allege the breach of duty was the proximate cause of their emotional distress damages.
In 1985, the Nevada Supreme Court adopted The Dillon Rule as a means of determining whether a bystander is entitled to damages arising from emotional distress resulting from witnessing the injury or death of another individual. State v. Eaton, 101 Nev. 705, 712-718 (1985) (discussing and adopting the reasoning and holdings of Dillon v. Legg, 441 P.2d 912 (Cal. 1968). The Dillon Court rejected the “zone of danger” rule applied by various jurisdictions in determining whether a plaintiff could recover on a claim for NIED. Dillon, 441 P.2d 912, 915-916. Instead, the Court in Dillon, and adopted by the Eaton Court, determined that “liability could be circumscribed in these cases, as in all other tort cases, by the application of the general principles of negligence.” Eaton, 101 Nev. 705, 713 (citing Dillon, 441 P.2d at 924). Specifically, the analysis should be whether the harm to the bystander was reasonably foreseeable. Id. Thus, in order to recover on a claim for NIED, the plaintiff must demonstrate that the “defendant’s negligent conduct was the proximate cause of the harm” to the plaintiff. Id. At 714.
The Dillon Court set forth the following factors to determine whether the injury to the plaintiff was foreseeable in an NIED claim:
- Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
The second possibility for recovery for emotional distress damages are those damages suffered by the direct victim of negligence. Shoen v. Amerco, Inc. is regularly cited to support a direct claim for emotional damages. Shoen v. Amerco, Inc., 111 Nev. 735 (1995). At the time that Shoen was decided, Nevada had not expressly permitted damages for emotional distress in a negligence cause of action. Id. At 748. The Court determined that “the direct victim should be able to assert a negligence claim that includes emotional distress as part of the damage suffered” and that “negligent infliction of emotional distress can be an element of the damage sustained by the negligent acts committed directly against the victim-plaintiff.” Id. In a 1993 case discussing infliction of emotional distress damages, the Court discussed the possibility that a direct victim of negligence would seek damages related to emotional distress, but did not specify whether such damages would be an element of a negligence claim or a separate NIED claim. Chowdry v. NLVH, Inc., 109 Nev. 478, 483 (1993). In 2000, the Court, relying upon Chowdry, appears to recognize a direct claim for NIED in Olivero v. Lowe, 116 Nev. 395, 399-400 (2000). The United States District Court for the District of Nevada recently found that a direct victim cannot assert a claim for NIED, stating that the plaintiff had misinterpreted Shoen as that case would permit a direct victim to seek emotional distress damages under a common negligence claim, which is different from asserting a separate NIED claim for direct victims. Wheeler v. City of Henderson, 2017 U.S. Dist. Lexis 96688, *14 (2017). In fact, the Court stated that the Nevada Supreme Court has not approved a separate NIED claim for direct victims. Id.
In Barmettler v. Reno Air, Inc., 114 Nev. 441, 448 (1998), the Court held that physical injuries are not necessary to claim emotional distress damages: “where emotional distress damages are not secondary to physical injuries, but rather precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of serious emotional distress causing physical injury or illness must be presented.” Id. (emphasis added)(internal quotation omitted).
Regardless of whether the claims are brought by a bystander or a direct victim, the Court does require sufficient evidence of the emotional distress and resulting physical harm. Insomnia and general physical or emotional discomfort were insufficient to satisfy the physical harm requirement in Chowdry v. NLVH, Inc., 109 Nev. 478, 483 (1993). The plaintiff’s additional minimal therapy was not sufficient to satisfy the physical injury requirement in Barmettler, 114 Nev. at 448. The Nevada Supreme Court upheld the award of compensatory damages for the victim of an assault because it is “a tort that does not require a physical impact, [and] is in and of itself a predicate for an award of nominal or compensatory damages.” Olivero v. Lowe, 116 Nev. 395, 400 (2000). In Olivero, the victim testified that he continued to experience terror “through extreme nervousness” following his assault at gunpoint and was forced to discontinue his business due to fear of the unsecure environment. Id. at 401. Plaintiffs alleging emotional distress must provide evidence that they sought therapy or other medical attention to address those concerns; mere statements that he or she is extremely depressed is insufficient. See, Miller v. Jones, 114 Nev. 1291 (1998). With regard to intentional infliction of emotional distress claims, the Court has held that “the less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from the emotional distress.” Nelson v. City of Las Vegas, 99 Nev. 548, 555 (1983). In Chowdry, the Court applied this analysis to the NIED analysis when it found that the plaintiff failed to provide evidence of extreme or outrageous conduct. Id.