Personal Injury Lawyer
In addition to physical harm, a plaintiff may recover for emotional harm caused by the torts of another. The two theories under which a plaintiff may recover for emotional distress inflicted by another are intentional infliction of emotional distress and negligent infliction of emotional distress.
Intentional Infliction of Emotional Distress
A plaintiff must meet a very high standard prove a claim for intentional infliction of emotional distress. Intentional infliction of emotional distress requires that a plaintiff show that the defendant intentionally or recklessly engaged in extreme and outrageous conduct, and that conduct caused the plaintiff severe emotional distress.
The determination of whether conduct is sufficiently extreme and outrageous is subjective and depends on the facts of each particular case. Typically, the defendant’s conduct must be so outrageous and extreme that it goes beyond all possible bounds of decency and is regarded as intolerable in a civilized society. One example of conduct that meets this standard is telling another their family member has died as a prank. However, to constitute intentional infliction of emotional distress, the plaintiff must have suffered some damage as a result of the news, such as weeks of stress and incapacity requiring medical attention.
Further, the damages suffered by the plaintiff must constitute severe emotional distress. Brief discomfort or humiliation is not enough. The plaintiff must show that they have suffered a psychological injury that is both significant and lasting. A few jurisdictions also require the plaintiff to show that the psychological injury led to tangible physical symptoms.
Lastly, immediate family members of a victim can also recover for intentional infliction of emotional distress. If the defendant intentionally injures someone while the victim’s family member is watching, the family member may sue for the emotional distress they suffered from watching the victim being injured. However, the defendant must have known that the family member was watching. Some jurisdictions also allow a stranger to recover for emotional distress from witnessing another’s injury, but only if the stranger becomes physically ill as a result.
Negligent Infliction of Emotional Distress
Most jurisdictions also allow a plaintiff to recover for emotional distress even when the defendant did not mean to harm the victim or did not act with reckless disregard of the risk of harm, but was negligent in bringing about the harm. Because the action is based in negligence, the court will evaluate whether the defendant breached a duty of care to the plaintiff in causing the plaintiff’s emotional distress.
To determine whether a plaintiff can recover for emotional distress due to another’s negligent conduct, some states use the “direct zone of danger” test, while others use a foreseeability standard. The direct zone of danger test posits that if the plaintiff was in immediate danger of being harmed by the defendant’s negligence, the plaintiff can sue for the emotional distress they suffer as a result. In states that employ a foreseeability test, the plaintiff may recover if the harm they suffered was a reasonably foreseeable consequence of the defendant’s negligent conduct.
Like intentional infliction of emotional distress, the plaintiff’s emotional injury must be severe. In negligent infliction of emotional distress claims, most jurisdictions also require that the plaintiff’s emotional harm be accompanied by physical symptoms. Some states allow negligent infliction of emotional distress claims by family members who have witnessed the harm.