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Barmettler v. Reno Air Inc.4/16/1998
erwise, as to other elements are rendered immaterial and summary judgment is proper." Bulbman, 108 Nev. at 111, 825 P.2d at 592.
Reno Air provided proof that, at arbitration, Barmettler failed to produce any evidence demonstrating that Reno Air fraudulently induced him into accepting employment or seeking drug and alcohol therapy. In the absence of proof to the contrary, Barmettler's naked allegations on these issues were insufficient to raise a triable issue of fact. Again, it is fundamental that the nonmoving party may not rest on the allegations of his pleadings to successfully resist a motion brought under NRCP 56. Accordingly, summary judgment was appropriate as to Barmettler's fraudulent misrepresentation claim.
Intentional infliction of emotional distress
To establish a cause of action for intentional infliction of emotional distress, Barmettler must establish the following:
(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation.
Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981)
(citations omitted).
We conclude that Barmettler has failed to establish either the first or second elements of this cause of action. Accordingly, summary judgment as to this claim was warranted.
Negligent infliction of emotional distress
We first examined negligent infliction of emotional distress for negligent acts committed directly against a plaintiff in Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993). In Chowdhry, we observed:
We have not previously had occasion to decide whether a plaintiff may recover for negligent infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v. Eaton, we first recognized a cause of action for negligent infliction of emotional distress where a bystander suffers "serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant.,, The "physical impact" requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff.
In the present case, Chowdhry's emotional distress claims are premised upon respondents' accusations of patient abandonment. Chowdhry testified that as a result, "he was very upset" and could not sleep. Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement.
Id at 482-83, 851 P.2d at 462 (citations omitted) . We ultimately embraced this doctrine in Shoen v. Amerco, Inc. 111 Nev. 735, at 748, 896 P.2d 469, at 477 (1995).
Barmettler argues that the physical impact requirement is not mandatory in emotional distress claims. While we agree that "emotional overlay" claims, as has been the rule for many years, may be brought in the context of physical injury claims arising from a physical impact, we take this opportunity to clarify Chowdry's implication that a "physical impact" may be required in cases brought under Shoen. We therefore hold that, in cases where emotional distress damages are not secondary to physical injuries, but rather, precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of "serious emotional distress" causing physical injury or illness must be presented.
We conclude that the district court correctly found that the additional minimal therapy underwent by B
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