Can I Sue for Emotional Distress?

Yes, in some cases you may be able to sue for emotional distress. You generally need to show that someone intentionally engaged in outrageous behavior for the purpose of causing you severe emotional distress. In some cases, you can sue if someone negligently caused you to suffer severe emotional distress, but there are some significant hoops you need to jump through. Meeting these challenges will depend on your circumstances and the state you live in.

Emotional distress claims seem straightforward, but they can actually be complicated. Proof is always an issue, and state laws differ dramatically about the specific elements of an emotional distress claim. An experienced personal injury attorney would be able to advise you within the context of an attorney-client relationship about the merits of your personal injury claim and help you gather the evidence you need.

Civil Wrongs (Torts)

Let's start at the top. If someone injures you, the law may give you a remedy. Civil wrongs for which state law allows you to sue someone are called “torts." There are many different torts, such as, for example, negligence, assault, battery, defamation, and invasion of privacy.

Elements of a Tort

Each tort consists of elements. To establish a tort in court, you must be able to prove each element by a preponderance of the evidence. Another way some states put this is that you have to show that it is “more likely than not" that the element exists. If you can meet this burden for each element of the tort, you'll win your lawsuit.

Generally speaking, the elements of most torts require an intentional component (whether someone actually intends to bring about the result or fails to use reasonable care and unintentionally brings about the result), an injury, and a direct, foreseeable connection between the two. For example, the tort of negligence requires you to prove:

• Someone owed you a legal duty to use reasonable care
• They breached this duty by failing to use reasonable care
• As a direct and foreseeable result of their failure to use reasonable care, they caused you harm

Damages

If you win your tort case, you can recover damages. This term refers to money intended to compensate you for losses you sustained as a result of someone's wrongful conduct. Damages consist of two general categories:

• Economic damages
• Non-economic damages

Economic damages are specific, objective costs that you can readily measure and calculate just by doing some math. For example, the amount of money you lose from time off of work — lost wages — can be calculated by taking your usual paycheck and subtracting the amount you were actually paid. Similarly, you can use medical records to prove the amount you are owed for medical treatment.

In contrast, non-economic damages are subjective, non-monetary losses that you can't objectively measure. Non-economic damages include:

• Pain and suffering
• Loss of society and companionship
• Loss of consortium (loss of the benefits of a marital relationship)
• Loss of enjoyment of life

Emotional harm is another category of non-economic damages that may be available if you prove your tort case.

What Is Emotional Distress?

On its face, emotional distress is pretty easy to understand. It's essentially the same thing as mental anguish, mental distress, emotional suffering, or emotional pain. But the legal definition is more nuanced. Although the precise definition varies from state to state, emotional distress is a highly unpleasant emotional reaction that is specifically caused by another person.

Some symptoms of emotional distress include the following:

• Depression
• Anxiety
• Shame, humiliation, or guilt
• Insomnia or nightmares
• Fear
• Anger
• Flashbacks
• Panic attacks
• Fatigue
• Chronic headaches
• Weight gain or loss
• Uncontrollable crying

Typically, emotional distress is a category of damages you may recover if you can prove a specific tort. But in some instances, you can sue for emotional distress as its own separate tort. There are two types of independent emotional distress claims.

Intentional Infliction of Emotional Distress

The first is called intentional infliction of emotional distress. Generally, you can recover from someone if they deliberately engage in outrageous behavior for the purpose of causing you severe emotional distress. Like every tort, intentional infliction of emotional distress consists of elements that need to be proven. Although they differ from state to state, the elements generally include the following:

• Someone engages in extreme and outrageous conduct directed at you
• They act intentionally or recklessly
• You suffer severe emotional distress as a result

Let's break these elements down.

Extreme and Outrageous Conduct

The first challenge is proving extreme and outrageous conduct. States differ on what it takes, but most agree that it requires more than a showing of mere malicious, offensive, insulting, or even cruel behavior. Otherwise, courts would be flooded by lawsuits brought by people with hurt feelings.

Instead, you must be able to show that the traumatic event is truly beyond the bounds of human decency. What this phrase means depends on state law and the facts of the case. For example, making fun of an adult's disability may not satisfy this standard, but making fun of a disabled child might. Similarly, a single racial slur may not be enough, but repeated racial harassment might be. Whether the actions are outrageous enough to support a claim is for the jury to decide.

Intent Component

Next, you must prove either intent or recklessness. This requires a showing that someone deliberately tried to cause severe emotional distress or knew that severe emotional distress was likely to occur as a result of their conduct.

Intent can be hard to prove. Unless the person admits that they meant to do what they did, you often have to rely upon circumstantial evidence. Circumstantial evidence requires you to draw an inference to reach a conclusion. For example, if you walked into a room and saw someone standing over a dead body with a smoking gun in their hand, you could reasonably infer that the person shot the victim.

Severe Emotional Distress

Finally, you need to show that you suffered not just common emotional distress, but severe emotional distress. Not to sound like a broken record, but states differ on what it takes for emotional distress to be severe enough to support an intentional infliction of emotional distress claim. Generally speaking, emotional distress reaches the level of severe when no reasonable person should be expected to endure it.

When making this determination, courts look to a number of factors relating to the emotional distress suffered, including:

• Its intensity
• Its duration (the longer suffered, the more likely the court will find it to be severe)
• The nature of the conduct that caused it (the more outrageous, the more likely a court will find distress sufficiently severe)
• Whether it gave rise to physical symptoms (e.g., headaches, insomnia, ulcers, gastrointestinal distress, etc.)

Absent observable physical injuries, this element is highly subjective. Proof comes down to being able to persuade the judge and jury that they should believe what you say and that they should accept the testimony of your expert witnesses. If you are successful, you can recover money as emotional distress damages.

Negligent Infliction of Emotional Distress

The second emotional distress tort is called negligent infliction of emotional distress. State law defines the elements, and they can vary widely. Generally, those states that recognize the claim require proof of at least the following elements:

• Someone owed you a duty to act with reasonable care
• They breached that duty
• As a result of that breach, you suffered severe emotional distress

But your state may require you to prove additional elements.

Foreseeability

Most states that allow you to recover for negligent infliction of emotional distress apply a foreseeability rule. If the severe emotional distress was a reasonably foreseeable result of the bad behavior, you may be able to bring this claim.

An example may help illustrate. Say a driver is texting on their phone and swerves onto the sidewalk where a mother and her child are walking. The mother is physically uninjured, but tragically the child dies. In addition to other personal injury claims, the mother may have a good case for negligent infliction of emotional distress, since it is reasonably foreseeable that swerving onto a sidewalk when driving could have tragic and life-altering consequences.

Zone of Danger

In some states, you have to be at risk of being physically harmed in order to sue for negligent infliction of emotional distress. They call this being in the “zone of danger." Other states call this the “bystander rule."

In some of these states, you have to show that you are in a close relationship with someone who is actually harmed and that witnessing the event caused you severe emotional distress. The above example again applies. A family member who suffers severe emotional distress after witnessing their loved one get hit in a car accident may be able to bring this claim.

Impact

Some states follow the impact rule. They require you to show that your severe emotional distress included physical symptoms, such as weight loss, insomnia, or that you developed an ulcer.

The line gets fuzzy when you develop a diagnosable mental health condition as a result of the emotional distress. For example, states that follow the impact rule split over whether you can recover damages for this tort if you develop post-traumatic stress disorder. Mental suffering in itself may not constitute a physical symptom, depending on where you are.

Damage Caps

You should be aware that some states limit recovery for non-economic damages such as emotional distress. There are a number of reasons for these damage caps, but the chief reason is to discourage frivolous lawsuits.

Currently, eleven states have caps on non-economic damages that could limit recovery in an infliction of emotional distress case: Alaska, Colorado, Hawaii, Idaho, Kansas, Maryland, Mississippi, Ohio, Oklahoma, Oregon, and Tennessee. The caps range from $250,000 to $750,000 or more.

A Lawyer Can Help With Your Emotional Distress Lawsuit

If someone caused you severe emotional trauma, you may want to talk with a personal injury lawyer. As you can see, these cases pose a challenge that you wouldn't want to undertake on your own. A good lawyer can help you better understand your claim, give you legal advice, and help you decide if bringing a personal injury legal action is in your best interest.

Many attorneys will offer a free consultation for a personal injury case and will accept payment under a contingency fee arrangement (which means that they only get paid if you recover money in a judgment or settlement). Contingency fee arrangements are common in personal injury law.

You also should be aware that virtually every state limits the time in which you can bring an infliction of emotional distress claim under a statute of limitations. If you wait too long to bring your claim, a court will dismiss it. So act promptly if you're thinking about suing for emotional harm in a personal injury lawsuit.