Tort Law: Liability for Emotional Distress Torts




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Emotional Distress Torts

Tort law protects people from harms which result from the wrongful conduct of others. While we usually associate tort claims with harms to people or to property, the law also recognizes emotional or psychological harm as a distinct form of injury. This recognition was a result of a historical development, as society increasingly understood the severity and the long-lasting consequences of mental injury.

Under the traditional common law, damages for mental harms were only recoverable as part of torts like assault, battery, or false imprisonment. Plaintiffs could include emotional distress as an additional harm if they also suffered physical injury or the threat of physical injury. Eventually, the courts recognized the infliction of psychological injury as its own independent cause of action, even without any accompanying harm to a person or property.[1] Today, most jurisdictions recognize two torts for emotional harm, the intentional infliction of emotional distress, and the negligent infliction of emotional distress.

Intentional Infliction of Emotional Distress

Certain kinds of behavior, under specific conditions, can be deeply offensive and psychologically damaging to other people, even if there is no threat of physical harm. For example, a practical joker who thinks it would be funny to tell someone that an accident has caused serious injury or death to a family member does not cause a physical injury. Yet, the law holds the prankster liable for the devastating psychological impact of such a cruel joke.

Since the definition of offensive conduct is subjective by its very nature, the courts have set high standards to make out a claim for intentional infliction of emotional harm. To be successful, the plaintiff must show that the defendant intentionally or recklessly engaged in extreme and outrageous conduct which caused severe emotional distress to another person.[2]

Let’s take these elements one at a time. First, the conduct must be intentional or reckless. Someone can be liable for inflicting emotional distress if he or she intended to cause distress, or unreasonably disregarded a high risk that distress would occur.

The key question in emotional distress cases is whether the defendant’s conduct was extreme and outrageous. This is a subjective determination, and must be decided on a case by case basis. The most widely accepted standard is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” An action which would lead an average member of the community to exclaim, ‘Outrageous!’[3]

One case in which the court found conduct to be extreme and outrageous is the example mentioned earlier. A regular customer at a pub decided to frighten the pub owner’s wife, whose husband had gone away for the day. As a joke, he told her that her husband had been in a terrible accident, and had broken both legs, and encouraged her to go be with her husband.  In response, she vomited and suffered a violent shock to her nervous system, leading to weeks of suffering and incapacity requiring medical attention.[4]

Other examples include a defendant who made repeated late night harassing calls to the plaintiff to collect a debt, causing her to suffer a heart attack,[5] and a meter reader who aggressively demanded entry into an apartment where a pregnant woman was bedridden, causing her to miscarry.[6] In one case, a woman brought a successful case for emotional harm against the estate of a man who was a guest in her home, who committed suicide in her kitchen. The court found that the defendant’s conduct was outrageous and in reckless disregard of the risk of causing emotional distress to his host, who suffered nervous shock when she found the corpse and a kitchen knife in a pool of blood.[7]

As these cases suggest, the court will look at the specific circumstances of the case, and any relationship between plaintiff and defendant, to determine whether the conduct is outrageous.

The final element is showing that the plaintiff suffered severe emotional distress. A brief period of unhappiness or humiliation is not sufficient. In one case, a supervisor had repeatedly and outrageously publicly shamed an employee with a speech impediment over the course of many months. However, since the only harm the employee claimed was a feeling of ‘being shaken up’, and ‘wanting to go into a hole and hide’, the court ruled that the psychological injury was not severe.[8]  So, there is a substantial burden on the plaintiff to show significant and lasting psychological impact. At the same time, most jurisdictions have abandoned an older requirement for the plaintiff to demonstrate that the psychological harm led to observable, physical symptoms.

One special case involving intentional infliction of emotional harm is the case of bystanders. Normally, a defendant can only be held liable for emotional distress when he or she intended to cause distress to a particular person. If a school principal verbally abuses a student in an outrageous way, the student’s friend cannot sue for emotional distress since she was not the target of the conduct. However, the law recognizes an exception in the case of immediate family. If the defendant intentionally injures someone when the victim’s family member is watching, the relative can recover for the emotional injury suffered from witnessing the injury, if the defendant knew that the family member was present.  For example, a gang who attacks a father in front of his son can be held liable for the both the physical injury to the father, as well as the psychological trauma suffered by the son. Some authorities allow recovery for emotional distress even in cases where the bystander is a stranger, if he or she is present and witnesses an act of violence directed against another, and suffers physical injury as a result.[9]  Under this rule, someone who shoots another person in public may be held liable for intentionally inflicting emotional distress on all who are present and witness the shooting and become physically ill as a result.

Negligent Infliction of Emotional Distress

In addition to the tort of intentional infliction of emotional distress, most jurisdictions allow recovery for emotional harm under a theory of negligence. This means that even when there is no intent to harm, or reckless disregard of the risk of harm, one who has suffered severe mental harm can seek to recover damages caused by someone else’s negligent conduct. As a negligence-based cause of action, the courts will seek to determine whether the defendant breached a duty of care to the plaintiff, causing emotional distress.

There are two main questions the court will ask to decide a claim of negligent infliction of emotional distress. First, has the plaintiff demonstrated that he or she has suffered severe emotional injury? Since claims of psychological injury can be subjective, many jurisdictions require that the mental harm be accompanied by physical symptoms, such as nausea, headache, or any other physical manifestation of the mental trauma. However, the modern trend is to permit recovery even without physical symptoms.[10]

The second question the courts will ask is, how closely tied is the plaintiff’s injury to the defendant’s negligent conduct. Under the old rule, there could be no recovery unless the defendant’s conduct led to some direct impact on the plaintiff, though the impact only had to be slight. The smallest measure of bodily contact was enough. Today, the impact rule has been rejected in favor of the ‘zone of danger’ test. If the plaintiff was in direct danger of physical harm from the defendant’s negligent behavior, then the plaintiff can seek damages for mental harms suffered as a result.[11] Typical cases are car accidents due to negligent driving.  Take a case of a driver who runs through a red light while texting, and crashes into oncoming traffic.  A pedestrian who narrowly misses being hit by flying shrapnel can sue the driver for the mental injured suffered from being so close to serious physical injury. The determining factor here is whether the plaintiff was at immediate risk of physical harm. Some states do not have any special rule for negligent infliction of emotional harm. Instead, they use the standard foreseeability test for negligence cases, which asks whether the harm was a reasonably foreseeable result of the defendant’s conduct.

As with intentional infliction of emotional distress, some courts will recognize a negligence claim for emotional harm caused by witnessing harm to a family member. Let’s return to our car accident example, but change the circumstances. In this scenario, the piece of shrapnel misses the pedestrian, but hits her sister, Sarah, who was walking next to her, causing serious injury. The pedestrian suffers severe and long lasting trauma as a result of seeing her sister maimed and mutilated by shards of metal, and watching as Sarah writhed in agony in the middle of the street. In this case, the pedestrian can seek recovery because she herself was in the zone of danger and suffered distress from seeing a close family member seriously hurt.[12]

A minority of states have gone further, and do not require that the plaintiff even be in the zone of danger. In a well-known case from California, a mother who saw her daughter run over by a negligent driver while she was standing a few feet away sued for negligent infliction of emotional harm. The court ruled that even though the mother herself was on the sidewalk, and not in serious danger, that fact should not prevent her from recovering damages for her suffering. Rather than requiring a plaintiff be in the zone of danger, the court ruled that being present at the scene and witnessing injury to a family member was enough.[13]

It should also be noted that not all cases of negligent infliction of emotional harm involve violence or danger. In Mollien v. Kaiser Foundation Hospitals, doctors mistakenly diagnosed a patient with syphilis. This led the patient to suspect that her husband was conducting an extra-marital affair, ultimately causing the breakup of their marriage. When it was revealed that the diagnosis was wrong, the patient’s husband sued the hospital on the grounds of negligent infliction of emotional distress. The court ruled that the risk of emotional harm to the husband from the misdiagnosis was foreseeable, and thus held the hospital liable.[14]



Footnotes

[1] W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 12, at 57 (5th ed. 1984).

[2] Restatement (2nd) of Torts, §46.

[3] Restatement (2nd) of Torts, §46, Comment d.

[4] Wilkinson v. Downton, Q.B. 57 (Eng. 1897).

[5] George v. Jordan Marsh Company, 268 NE 2d 915 (Mass. 1971).

[6] Bouillon v. Laclede Gaslight Co., 129 S.W. 401, 148 Mo. App. 462 (1910).

[7] Blakely v. Estate of Shortal, 20 N.W.2d 28 (Iowa 1945).

[8] Harris v. Jones, 380 A.2d 611 (Md. 1977).

[9] Restatement (2nd) of Torts, § 46.

[10] W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 54, at 364 (5th ed. 1984).

[11] W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 54, at 364-65 (5th ed. 1984).

[12] See Restatement (2nd) of Torts, § 436(2)-(3).

[13] Dillon v. Legg, 441 P.2d 912 (Cal. 1968).

[14] Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980).