Posted: January 10, 2017
Civil Jury Instructions – Emotional Distress – Comment period expired February 25, 2017
The following proposed Model Utah Civil Jury Instructions address emotional distress:
CV1501 – Intentional infliction of emotional distress.
CV1502 – Outrageous conduct.
CV1503 – Severe or extreme emotional distress.
CV1504 – Definition of intent and reckless disregard.
CV1505 – Negligent infliction of emotional distress.
CV1506 – Definition of “zone of danger.”
Click here to view a pdf version of proposed Model Utah Civil Jury Instructions 1501-1506.
Please reference the instruction number(s) in your comments.
I am very pleased that the committee has finally decided to add MUJI instructions for both IIED and NIED. In relation to CV1503 “Severe or Extreme Emotional Distress,” I think the language should be amended in the following respect (proposed changes are capitalized):
“Emotional distress may include, BUT IS NOT LIMITED TO, . . . “; “In determining the severity of distress, you SHOULD consider . . .”
“Zone of danger” should not be limited to just “physical” peril.
I propose adding the words “severe or extreme emotional distress.”
I have handled cases in which innocent bystanders, such as a parent, have suffered severe and extreme emotional distress even though the bystander is not in any physical peril herself. For example, one case involved a newborn still in the hospital who was being treated by hospital staff drawing blood from the newborn in one last blood test in an already tense neonatal intensive care unit (NICU) with breathing difficulties. It was the last draw just before the mother would be going home with her newborn joy. The mother was right there in the zone, watching. The staff person had difficulty finding a vein/artery to draw the blood because of how small newborns are. Thinking that warm water could help enlarge the vein/artery, the staff person applied a wet diaper with mistakenly scalding hot water. As a result, the newborn’s tender skin on the heel and leg was severely burned causing multiple painful burns, burn treatment and permanent scarring. The mother, although not in any physical peril herself, was horrified and powerless to do anything to help her new baby who was crying, screaming and moving her legs in writhing pain. A wound team was called to address the negligence by the hospital staff. Traumatized and in disbelief, the parents went home with their burned baby. Continued care and follow up treatment was necessary. This caused severe and extreme emotional suffering to both baby and mother, with life-long ramifications and re-living the experience when explaining the scars to her daughter as she grows up.
See Johnson v. Rogers, 763 P.2d 771, 782 (Utah 1988). This case supports the above and can be added to the proposed “zone of danger” instruction.
The instruction does not address the situations found in Candelaria v. CB Richard Ellis, 2014 UT App 1, 319 P.3d 708, para. 9 & 10, and Anderson Dev. Co. v. Tobias, 2005 UT 36, 116 P.3d 323, para. 57 – 61. In Candelaria the court of appeals discussed whether to allow a cause of action for NIED due to a slip/fall on ice and snow while taking out the trash. They set out the elements for proving such a claim but concluded that the plaintiff had not alleged sufficient facts to prove those elements. In Tobias, the S. Ct. rejected a claim for NIED for filing an abusive lawsuit. Neither situation fits the classic Johnson v. Rogers scenario, which is what the proposed instructions address.