Negligent Infliction Of Emotional DistressNegligent Infliction Of Emotional Distress

This case is governed by State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). Eaton requires that HN1a bystander plaintiff be closely related to the victim of an accident, be located near the scene of the accident, and suffer a shock resulting from direct emotional impact stemming from the sensory and contemporaneous observance of the accident. Id. at 716, 710 P.2d at 1377-78. The majority of the cases on negligent infliction of emotional distress have involved automobile accidents, including Eaton. Thus, some of the language of these cases cannot appropriately be applied to the negligence of a pharmacist dispensing drugs. In addition to debating whether a plaintiff is a bystander or what the plaintiff actually observed, we should to look to the basic principles underlying the tort of negligent infliction of emotional distress.

In Eaton, this court discussed some of the history of the tort of negligent infliction of emotional distress due to injury to another. This court embraced the ruling in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (Cal. 1968) by saying:

The [Dillon] court held that liability could be circumscribed in these cases, as in all tort cases, by the application of the general principles of negligence. 441 P.2d at 924. The trial courts could determine whether the accident and the harm to the bystander was reasonably foreseeable and “thus mark out areas of liability, excluding the remote and unexpected.” 441 P.2d at 921. We agree with the reasoning of the California court. We “see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case before us.” 441 P.2d at 924 . . . See also II Harper and James Sec. 18.4, p. 1039 (“mechanical rules of thumb which are at variance with these [general] principles [of tort law] do more harm than good.”)

Eaton, 101 Nev. at 713, 710 P.2d at 1376.

Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court’s test for negligent infliction of emotional distress. Id. at 715.

In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist’s negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.

Of course, the plaintiff still faces the burden of proving her damages and proving that they were the proximate cause of the pharmacist’s negligence. The jury should be allowed to make the determination of whether [the]’ claim is meritorious.

 

Liability For DefamationLiability For Defamation

To create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm, or the existence of special harm caused by the publication . . .

A statement is defamatory when it would tend to lower the subject in the estimation of the community, excite derogatory opinions about the subject, and hold the subject up to contempt. In reviewing an allegedly defamatory statement, the words must be reviewed in their entirety and in context to determine whether they are susceptible of a defamatory meaning. Whether a statement is defamatory is generally a question of law; however, where a statement is susceptible of different constructions, one of which is defamatory, resolution of the ambiguity is a question of fact for the jury.

 

Comparative Negligence And Res Ipsa LoquiturComparative Negligence And Res Ipsa Loquitur

Res ipsa loquitur is an exception to the general negligence rule, and it permits a party to infer negligence, as opposed to affirmatively proving it, when certain elements are met. In order for the doctrine to apply, traditionally a party must show:

(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence

(2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and

(3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff.

The state has incorporated these three elements into its pattern jury instructions.It also requires the defendant to have superior knowledge of or be in a better position to explain the accident for res ipsa loquitur to apply. Once the elements of res ipsa loquitur are met, the burden shifts to the defendant to show that something other than its negligence caused the accident. Whether sufficient evidence supports an inference of negligence under res ipsa loquitur is a question for the jury; however, the district court must first determine whether sufficient evidence has been adduced at trial to support the consideration of a res ipsa loquitur instruction and therefore whether the instruction should be given . . .

We have previously stated that the comparative negligence statute renders certain common law complete defenses inapplicable. Specifically, we have recognized that the comparative negligence statute subsumes the doctrines of assumption of the risk and last clear chance. In these cases, we acknowledged that a plaintiff may still proceed in the underlying negligence suit, and the common law defenses cannot bar the suit, provided that the plaintiff’s negligence does not exceed that of the defendant. Otherwise, these doctrines would subvert the principles of comparative negligence and would compel results inconsistent with the plain language of NRS 41.141 . . .

To completely bar plaintiffs from the use of res ipsa loquitur in situations where comparative negligence applies contravenes the express language of NRS 41.141. Accordingly, we conclude that NRS 41.141 operates to subsume the third element of res ipsa loquitur. From this point forward, the third element of res ipsa loquitur is revised to provide that the doctrine may apply as long as the plaintiff’s negligence is not greater than that of the defendant. On this point, we expressly overrule the test for res ipsa loquitur as stated in Bialer v. St. Mary’s Hospital in favor of the one stated in this opinion. The doctrine of res ipsa loquitur is to henceforth reflect the impact of comparative negligence and NRS 41.141.