The Tort of Negligent Infliction of Emotional Distress Remains Unrecognized
Dowty v. Riggs, 2010 Ark. 465 (2010)
On December 2, 2010, the Supreme Court of Arkansas held, yet again, that the tort of negligent infliction of emotional distress is not recognized as a cause of action in the state of Arkansas. Although the controversial cause of action is accepted in the majority of jurisdictions, the court decided the facts in Dowty v. Riggs did not warrant a reversal of common law. They did, however, leave the possibility open that facts in a future case could justify the creation of the new tort.
The facts in Dowty were relatively simple. The appellants drove to the house of the appellees to help with yard work when the son of the appellees approached the vehicle and shot one of the appellants in the arm with a .25-caliber pistol. The other two appellants witnessed the event and claimed emotional distress despite the lack of physical injury. The appellee was acquitted of all charges because of mental disease or defect and the appellants decided to file a claim against the appellee’s mother for the negligent infliction of emotional distress. The circuit court granted summary judgment because the cause of action was not recognized in Arkansas so the appellants appealed contending their damages warranted a remedy.
The court began by stating that it will “tread cautiously when deciding whether to recognize a new tort” and will “decline to recognize a new cause of action if there are other sufficient avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff.” In its analysis, the court reasoned that the tort hasn’t been recognized because of the long standing belief “there can be no recovery for fright or mental pain and anguish by negligence, where there is no physical injury.” Without physical injury, previous courts have determined damages to be too remote and difficult to ascertain. The court then compared the facts to similar cases in jurisdictions which recognize the tort and determined that other jurisdictions were “unwilling to allow recovery for the breach of a landowner’s duty to an invitee, a duty that is broader than the duty owed to the appellants, who were mere licensees.” The concluded that the appellants “failed to demonstrate that great injury or injustice would result were [it] to continue to uphold the prior decisions of this court.”
By Brandon Tittle
