WORKPLACE BULLYING UPDATE: NIED CLAIMS MAY PROVIDE PATH TO RECOVERY

In Kentucky, prior to the landmark case of Osborne v. Keeney, negligent infliction of emotional distress (NIED) applied only to situations in which physical contact or impact occurred and was the cause of harm. While this “impact rule” was designed to provide a well-defined line of where liability starts and ends, it led to some controversial rulings on the matter. For example, in Deutsch v. Shein, the Supreme Court decided that an X-ray hitting the body was sufficient contact to claim damages based on negligent infliction of emotional distress, proving that the impact could in fact, be very minimal. Conversely, in Wilhoite v. Cobb, a mother was denied damages after witnessing a truck hit her infant daughter. According to the Supreme Court in this particular case, the sound and light waves from the accident that hit the mother were not a physical impact; therefore, she could not claim damages for negligent infliction of emotional distress. Osborne, however, dramatically changed a plaintiff’s ability to claim negligent infliction of emotional distress by eliminating the “impact rule.”

In 2002, the plaintiff in Osborne was sitting at home when a pilot crashed a plane into the second level of her home. The initial crash caused significant damage to her home and belongings and set her house afire. Luckily, the plaintiff managed to escape her home before she was hit by any sort of debris from the home or from the plane, and she did not suffer any physical injuries from the event. In the initial lawsuit, the plaintiff claimed that she was physically impacted by the shockwaves of the crash, and suffered emotional distress while watching her house burn. This fact became irrelevant though, as a consequence of the Supreme Court’s ruling that the “impact rule” was no longer the threshold for determining liability in these types of lawsuits. The Supreme Court ruled that in order to claim negligent infliction of emotional distress, a plaintiff must now only satisfy the general elements of a negligence claim and prove serious injury that is supported by expert testimony. This new framework has been further affirmed in cases following Osborne.

Although there has only been a scarce amount of cases that have dealt with NIED since the ruling of Osborne, the implications for employment law are clear. The elimination of the impact rule has opened a door for plaintiffs who have been injured emotionally by an employer’s negligence, even though no physical contact has occurred. This is especially beneficial in cases involving workplace bullying, for which there is currently no statutory protection offered.

Although Kentucky courts have yet to decide a case involving NIED claims related to workplace bullying, such a claim is likely viable. In theory, if an employer negligently allows an employee to suffer severe emotional distress through the actions of co-workers or managers, that employee should be able to recover damages for the emotional injury suffered. We’ve discussed before a potential framework for workplace bullying claims through KRS 446.060 in conjunction with various criminal statutes. Now that the impact rule is no longer a valid measuring stick, NIED claims could very well be used to supplement those claims through the KRS 446.060 framework.

If you have been subjected to extreme verbal abuse in the workplace, you should seek counsel immediately to determine the legal options available to you. It is quite possible that you have been subjected to unlawful activity, and may have a potential claim for the damages you have suffered.

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