concurring in part and dissenting in part:
I agree with the opinion of Chief Justice Springer with respect to the issue of what relationship is required to support a claim for NIED. However, I write separately because I am troubled by the majority’s willingness to brush aside the specific provisions of NRS 41.035 on the grounds that Lewis’ claim for emotional distress was an action separate from his claim for physical injury. This decision is unsupported by case law and represents ill-advised public policy.
It is important to note at the outset that Lewis’ wrongful death *822claim was settled prior to trial. To the extent his damage award at trial related to injuries caused by Earnestine’s death, that award was based on a negligent infliction of emotional distress theory.
The majority relies on our decision in State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). However, Webster supports a conclusion opposite from the one the majority makes. In Webster, the plaintiff brought an action for the wrongful death of her husband and an action for her own personal injuries. We held that, vis-a-vis NRS 41.035, “the term ‘action’ is the wrong done and not the measure of compensation or the character of the relief sought” and, therefore, the plaintiffs wrongful death claim was an action separate from her personal injury claim.
In my view, emotional distress and physical injury are not separate wrongs; they are merely separate species of personal injury, a single class of wrong. While the plaintiff claiming physical injury seeks recovery for damage done to his or her body, the plaintiff claiming emotional distress requests compensation for injuries to his or her psyche. However, the majority, relying on certain language from Webster, states that ‘ ‘ [a] claim for negligent infliction of emotional distress rests on facts separate, distinct, and independent from those germane to a claim for personal injuries,” and, therefore, the two injuries give rise to separate actions. I believe that the majority here uses isolated language from Webster to subvert the primary holding of that case; the majority seems to assume that Webster holds that injuries based on “different facts” are necessarily “separate wrongs.”
The facts which a plaintiff must show at trial in order to prove any two injuries are, to some extent, necessarily separate and distinct from each other. Thus, the majority’s interpretation of Webster would allow a plaintiff to maintain separate actions for every individual injury. This is analogous to allowing a plaintiff to maintain separate actions for a broken arm and a twisted knee received in one accident. The majority seeks to distinguish this admittedly absurd example from the present case by stating that “a plaintiff need not have a personal injury claim to bring an action for negligent infliction of emotional distress; likewise, he need not have suffered emotional distress to bring a claim for personal injuries.” However, this is no answer. A plaintiff need not have suffered a broken arm to bring an action for a knee injury, and the reverse is also true.
Moreover, even different damage theories based upon a single injury require proof of separate and distinct facts. A personal injury plaintiff may recover damages for past and future pain and suffering, for loss of consortium, for loss of earnings before trial, for future loss of earnings, for the cost of medical services incurred, and for future medical expenses, just to name a few *823damage theories. In order to recover under each of these theories, the plaintiff must prove facts not required in order to prove the others. The majority’s decision today seems to imply that each of these damage theories gives rise to a separate cause of action.
I must emphasize that contrary to the majority’s assertion, my position is not that Webster was decided incorrectly. Rather, I contend that the majority reads Webster so broadly as to utterly eviscerate the provisions of NRS 41.035. The legislature has determined that the State’s liability in negligence should be limited to $50,000.00 per action. Even though Lewis’ recovery exceeded this limit by only $244.05, I fear that the majority’s decision today may have the effect of multiplying this figure several times. Such a radical change in the liability which public entities must be prepared to absorb is not ours to effect; it is the legislature’s. I believe that the majority’s fragmentation of injury claims into separate actions subverts the plain language of NRS 41.035. Therefore, I respectfully dissent.