Grades and Negligent Infliction of Emotional Distress

With clerkship application deadlines closing in and with finals fading ever farther into the distance, I have been checking with growing frequency to see if grades have been posted.  I fortunately delayed on checking on one of my classes this evening until after I received an extremely apologetic email from UCLA's records office warning me that a spreadsheet error had led to incorrect grades being posted, that we should disregard the posted grades, and that corrections will be posted soon.  Curious, I decided to peek at my grade.  All I will say is that I hope that the records office had not yet fixed the problem.

This got me thinking about negligent infliction of emotional distress (NIED).

Most law students at UCLA despise NIED because one of our earliest writing assignments, the dreaded "Hummel Memo" requires us to put together an objective memo concerning an NIED lawsuit.  Los Angeles offices and agencies that employ students during the summer following their 1L year are intimately familiar with the Hummel memo as a common writing sample that students send in their applications.  In this culture of irritation, whimsy, and war stories, students often forget that they are learning about a valuable area of law that may be of practical use...say in a situation where somebody with a duty of care towards another person neglects that duty of care, resulting in severe emotional harm towards that other person.

In California, some lawsuits focus on lawsuits filed by a bystander to an accident.  These lawsuits proceed under Thing v. La Chuza, 48 Cal.3d 644, 648 (1989) which requires that the plaintiff "(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." This is the rule that all UCLA students know (or knew when they were 1Ls).

This standard may be somewhat relevant for a situation where a records office negligently posts the results of a flawed grading spreadsheet. For example, say one of my family members is present when I open the page with the mistaken grade. This family member witnesses me let out a blood curdling scream and then keel over from a massive heart attack. The family member might have a viable NIED claim against the school.

While this approach is feasible given the typical law student reaction to poor grades, the savvy law student may be able to file suit without relying on a traumatized family member. Beyond Thing, California allows NIED suits in situations involving emotional damage resulting from sensitive relationships. For example, in Davila v. County of Los Angeles, 50 Cal.App.4th 137 (1996), the court of appeals held that a coroner has a duty to act with reasonable diligence to find a family member of a recently deceased person before cremating that person. An overhasty cremation may lead to an NIED suit since negligent conduct in this situation is likely to cause a serious emotional disturbance. Law students may argue that university employees in charge of posting grades are in a position where negligent actions are likely to cause severe emotional distress. Because of this special position, a negligent posting of a horrible Evidence grade may give rise to an NIED suit.

A final practice pointer: this strategy may work for classes where the posting of a terrible grade causes emotional shock and pain. This strategy is less feasible for classes where nothing but a terrible grade is possible, which removes the element of surprise from the negligently posted grade. For this reason, students in Federal Courts and Corporate Taxation should not rely on the strategies outlined in this blog post.