Personal Injury Lawyer

While emotional distress often accompanies physical and economic damages in personal injury lawsuits, most courts also recognize a separate cause of action for the tort of infliction of emotional distress, even in cases where no physical injury occurred. However, as a personal injury lawyer can explain, both the defendant’s behavior and the plaintiff’s emotional harm must be severe for an emotional distress lawsuit to be successful. For example, if the defendant told the plaintiff their child had died and the plaintiff suffered from panic attacks and depression as a result, the plaintiff could bring a claim for emotional distress. There are two types of emotional distress torts: intentional infliction of emotional distress and negligent infliction of emotional distress. 

Intentional Infliction of Emotional Distress 

Intentional infliction of emotional distress occurs when a person acts outrageously and with the intent to cause another person to suffer severe emotional distress. The plaintiff must prove four elements to be successful in their case: 

1) The defendant acted intentionally or recklessly; 

2) The defendant’s conduct was extreme and outrageous;

3) The defendant’s conduct caused the plaintiff; 

4) To suffer severe emotional distress.

The most important inquiry in an intentional infliction of emotional distress case is whether the defendant’s conduct was sufficiently extreme and outrageous. This determination is made on a case-by-case basis, but the most commonly used standard is whether the defendant’s conduct exceeded all bounds of human decency so as to be utterly intolerable in a civilized society. The plaintiff must meet such a high standard because emotional distress damages are subjective and difficult to quantify. 

The plaintiff can prove that the defendant’s conduct caused them severe emotional distress by showing that the conduct had a significant and lasting psychological impact on them. For example, the plaintiff might introduce evidence that they require psychological counseling or medication because of the defendant’s conduct.

Because intentional infliction of emotional distress often stems from something the defendant said to the plaintiff, First Amendment issues might bar the plaintiff’s claim. Courts typically will not allow a claim for intentional infliction of emotional distress where the defendant spoke harmfully about a public figure or where the defendant has expressed an idea that society as a whole finds offensive.

Negligent Infliction of Emotional Distress 

Instead of claiming that the defendant intentionally caused them emotional distress, a negligent infliction of emotional distress claim alleges that the defendant was so careless that it caused the plaintiff psychological harm. The plaintiff must show two things to be successful in a claim for negligent infliction of emotional distress:

1) Either: 

a) The defendant’s conduct caused a physical impact with the plaintiff; 

b) The plaintiff was in the “zone of danger” of the defendant’s negligent act; or

c) It was foreseeable that the defendant’s negligence would cause the plaintiff to  

    suffer emotional distress; and 

2) The plaintiff’s emotional distress was so severe that it caused the plaintiff to suffer       physical symptoms.

The “physical impact” variation of the first requirement is only used in a few states. The impact with the plaintiff can be as minor as a pebble hitting them, as long as some physical impact is made.

The “zone of danger” variation is followed in a minority of states and requires that the plaintiff was close enough to the defendant that they were at an immediate risk of physical harm from the defendant’s negligent conduct. 

The “foreseeability” variation is used in a majority of states and requires that at the time the defendant’s negligent conduct occurred, the defendant was reasonably able to predict that it could cause the emotional distress suffered by the plaintiff. This approach differs from the other two because it does not require that the defendant’s conduct involve some form or risk of physical harm.

Additionally, close family members can bring “bystander” negligent infliction of emotional distress claims if they witness or arrive immediately after an accident in which their family member was injured or killed due to the defendant’s negligent conduct. Courts typically use the foreseeability test in bystander cases, even in states that would normally use the physical impact or zone of danger test for a direct negligent infliction of emotional distress claim.

Thanks to Eglet Adams for their insight on the emotional distress torts.