Chapter 16 - § 16.2 • NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

• Jurisdiction: Colorado

§ 16.2 • NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Historically, claims for the negligent infliction of emotional distress in Colorado required a plaintiff to incur direct physical injury or impact from the tortious action, along with mental suffering, in order to recover. See Hall v. Jackson, 134 P. 151 (Colo. App. 1913); Towns v. Anderson, 567 P.2d 814 (Colo. App. 1977), rev'd, 579 P.2d 1163 (Colo. 1978). Thus, a person was not liable if the person negligently created an unreasonable risk of bodily harm or emotional disturbance to another that resulted in only emotional distress without any physical impact.

In 1977, the Colorado Supreme Court adopted the approach followed by the majority of the states and abolished the impact requirement. Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978); Restatement (Second) of Torts § 436 (1965). The court held that a plaintiff who is subjected to an unreasonable risk of bodily harm due solely to the negligence of another may recover for his or her emotional distress, even absent any immediate physical impact. Towns, 579 P.2d at 1165.

To recover on a claim for negligent infliction of emotional distress, a plaintiff must show (1) the defendant's negligence created an unreasonable risk of physical harm and caused the plaintiff to be put in fear for the plaintiff's own safety; (2) this fear had physical consequences or resulted in long-continued emotional disturbance; and (3) the plaintiff's fear caused the damages sought. Draper v. DeFrenchi-Gordineer, 282 P.3d 489, 497-97 (Colo. App. 2011) (setting forth elements); CJI-Civ 9:2 (CLE ed. 2022). A threshold inquiry, however, is whether the plaintiff can show that the plaintiff suffered physical injury or was in the "zone of danger." Draper, 282 P.3d at 497; see also Ratcliff v. Good Times Restaurants, Inc., No. 19-cv-00077-LTB-MEH, 2019 WL 2774217, at * 5 (D. Colo. July 2, 2019) (dismissing claim where there was no allegation plaintiff was in personal danger).

If an actor's negligent conduct only causes momentary fright, shock, or other similar and immediate emotional distress, no recovery is allowed. Towns, 579 P.2d at 1164-65; Atsepoyi v. Tandy Corp., 51 F. Supp. 2d 1120, 1127 (D. Colo. 1999) (holding that plaintiff's "supposed injuries of being 'physically distraught,' sustaining 'shock to his nervous system' and suffering 'severe emotional distress,' are inadequate for a negligent infliction of emotion distress claim" and noting that "[w]hile there is no precise...