Practice point: To maintain a cause of action for negligent infliction of emotional distress following exposure to a toxic substance, a plaintiff must establish both that there was exposure to a disease-causing agent and that there is a ‘rational basis' for plaintiff’s fear of contracting a disease.
Practitioners should note that the Court has construed ‘rational basis’ to mean the clinically-demonstrable presence of a toxin in plaintiff's body, or some other indication of a toxin-induced disease.
Case: Cleary v. Wallace Oil Co., Inc., NY Slip Op 08083 (2d Dept. 2008)
The opinion is here.
