47. If the homeowner asserts a claim for damages against the driver but is unable to establish that the driver was negligent, will the homeowner still be able to prevail?

A defendant may be liable for negligent infliction of emotional distress when, as a result of his negligence, he causes the plaintiff intense mental suffering as a bystander, even without experiencing any physical injury. To recover damages in this situation, the plaintiff must prove that he: (i) is in a close relationship with the person injured by the defendant; (ii) was present at the scene of the injury; and (iii) personally observed or perceived the event. The majority of states do NOT require proof of physical symptoms where all three elements are satisfied.

C is correct. The most applicable cause of action for the homeowner to bring against the driver is negligent infliction of emotional distress. However, a stand-alone claim for emotional distress requires that the defendant at least act negligently in a way that causes emotional distress to the plaintiff. The plaintiff must also be in a close relationship with the victim of the defendant's negligence, as well as be present and observe the event. Here, the homeowner witnessed the near injury to his own child and then his own near injury. However, the driver merely reacted to the sudden presence of a child in the road, with no showing of negligence, which will defeat the claim.

A is incorrect. This answer is incorrect for two reasons. First, the driver's entry onto the homeowner's land was privileged because of the need to avoid hitting the child. This emergency situation amounted to private necessity to enter the homeowner's land. Second, if any damage had been done to the property, a claim for damages resulting from emotional distress would not be able to be tacked on to a mere negligent damage to property claim.

B is incorrect. The homeowner's serious emotional distress from witnessing the danger to his child and to himself, by itself, will not sustain a claim here. This is because negligent infliction of emotional distress requires the plaintiff to establish that the defendant did, in fact, act negligently. Absent such a showing, the plaintiff will not recover.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The homeowner will not prevail, but not because of any negligence on the part of the child. The child's reasonable care will not be imputed to the homeowner as a parent. The homeowner's own comparative negligence may be considered (as a reduction of damages) for failure to exercise control over the child if the child had a known propensity to dart into the street. This issue, however, is a defense and will not be reached if the homeowner cannot first show that the driver breached a duty of care, causing injury to the homeowner.