Suing For Emotional Distress: How And When To Sue

Emotional distress in a general sense is easy to understand: it’s just mental suffering. The legal definition is a little more complicated, though. Though the language varies from state to state, the basic definition of emotional distress is mental suffering caused by someone else’s actions — either on purpose or accidental. Symptoms of emotional distress may include :

• Depression
• Anxiety
• Shame or guilt
• Insomnia or nightmares
• Flashbacks
• Fatigue
• Chronic headaches
• Weight gain or loss
• Uncontrollable crying

This is where the legal distinction starts to really matter, though. The “caused by someone else’s actions” part is the key. Let’s use a car accident as an example:

1. The first element of a car accident case is that people have the duty to drive legally and safely on public roads. Everyone who uses a car must be licensed and must obey the laws.
2. The second element of all negligence cases is a breach of duty. The person driving does not behave in the way a reasonable person would in that situation. In the case of a car accident, the breach happens when the person speeds or runs a stop sign. Technically, any violation of the law or is going to be a breach of the duty to drive safely, but breach of duty occurs by doing anything a reasonable person wouldn’t do.
3. The third element is that the breach of duty causes harm. This is where the emotional distress comes into play. If the car runs a stop sign and hits your car, there are many kinds of damages that can arise. Your car is damaged, perhaps you or your passengers are injured and you might experience mental suffering as a result, too.
4. Finally, the harm causes damages. In the example where the driver hit your car, obviously the cost of repairs and of medical treatment can be assigned a value. Courts have also determined ways to assign value to mental suffering.

In instances like this example — where there may be emotional distress accompanying physical harm — the emotional distress is commonly known as pain and suffering. In some states pain and suffering is only compensable if it is related to physical injuries or sickness.

Emotional distress does not have to be tied to a physical injury. Post-traumatic stress disorder (PTSD), anxiety, depression and other types of mental illness are medical diagnoses and can arise from a car accident in which there are no physical injuries.

It is also possible to sue for emotional distress when there was an intention to create emotional distress, such as in cases involving sexual abuse or harassment or defamation .

Emotional distress cases can be based on negligent infliction of emotional distress or intentional infliction of emotional distress. The word “intentional” suggests the main difference between the two types of cases. If someone sets out to cause distress, it can sometimes be enough for a lawsuit.

Negligent Infliction

In the car crash example, there’s obviously a case for pain and suffering to be considered along with the other harm caused by the accident. Suppose, instead, that the accident happened, but no one was physically hurt.

In order for you to successfully sue for emotional distress in most states, you would need to have some kind of physical reaction — even though there was no physical contact. If you were so scared you broke out in hives, for example, or developed a tremor in your hand, you may be able to seek damages from the driver.

The need for physical symptoms can vary from state to state, with some allowing a case to proceed if the symptoms are only minor issues like loss of appetite or inability to sleep. Some states have done away with the requirement for physical symptoms altogether in recent years .

The Bystander Lawsuit

A subset of cases for negligent infliction of emotional distress is the “bystander” type of case. Here, let’s return to the accident example. You were not in the intersection when the driver went through and were never personally in danger. However, you witnessed the driver hit your parents, who were crossing the street.

In this case, you could file a lawsuit against the driver for causing you emotional distress even if you had no physical symptoms and weren’t harmed or even touched. This would be the case if you arrived on the scene soon after, too. It would not, however, be a case you could pursue if you merely heard about it later.

If we replace your parents in the example with your best friend, most states would not allow you to file an emotional distress lawsuit. Bystander cases are typically limited to family members such as parents, grandchildren, children, siblings or relatives you live with.

Intentional Infliction

Everything up to this point has been concerning negligent or unintentional infliction of emotional distress. Intentionally causing someone mental anguish is different.

If people were allowed to sue every time someone’s behavior upset them, everyone would be in court all the time. To avoid this, courts limit cases of intentional infliction of emotional distress (IIED) to instances where conduct is extreme and or outrageous.

An IIED claim is very dependent on the specific facts and on whether you can convince a judge or jury that conduct is extreme enough. Some instances of bullying or name-calling won’t be enough to support a claim, but extreme examples that cause distress might.

Though not a requirement, physical reactions to the cruel or bullying conduct will make an IIED claim much more likely. For example, telling someone their spouse is in the hospital after suffering a severe accident may or may not be grounds for an IIED claim :

• If the spouse doesn’t believe the story or isn’t bothered by the joke, an IIED case will fail
• If the spouse is incredibly upset and experiences anxiety and fear, an IIED case may succeed
• If the spouse is so upset they suffer a heart attack, an IIED case is likely to succeed

What You Need To Prove When Suing for Intentional Infliction of Emotional Distress

To sue for emotional distress, you’ll need to be able to prove:

1. The defendant had a duty to behave reasonably and to not behave outrageously or in an extreme manner likely to cause distress
2. The defendant breached that duty by intentionally or recklessly behaving outrageously
3. These actions by the defendant caused you distress and harm

In order to win on the third element, it is helpful to have documentation of your suffering. Any diagnoses for PTSD or anxiety that happened after and as a result of the defendant’s actions will be especially compelling.

Some states apply the bystander law to IIED as well. Someone close to the person who was intentionally targeted can also file an emotional distress lawsuit even if they were not the target themselves.

What Qualifies for Emotional Distress Evidence in a Lawsuit?

Emotional distress is, by nature, intangible. Courts and juries are unlikely to want to award someone for simply having their feelings hurt, so it’s important to provide as much evidence as possible to support your claim.

If you’ve seen a therapist, counselor or psychiatrist since the incident occurred, any new diagnoses or medication changes may be evidence of your emotional distress. A relatively new form of evidence that could be persuasive comes from fitness or sleep trackers. These devices can provide records that show how your heart rate or sleep patterns may have changed since the traumatic event.

The rules for what will be allowed vary from state to state or even judge to judge, but any reliable evidence that supports your claim of emotional distress should be presented in court.

If you’re considering filing a claim, you should know that each state has its own statute of limitations on when an emotional distress claim must be filed. Statutes of limitations may be as long as six years, but most states allow two to three years. In some states, such as Kentucky,  you only have one year to file.

It is important to find an attorney you trust and feel comfortable with. Many personal injury attorneys have some experience with emotional distress, so you could begin by seeking recommendations from friends, family or other connections. You can also get a referral from your local bar association.

If you have an attorney for other purposes — perhaps an estates attorney or a tax attorney — consider asking for a recommendation from them, too. Depending on the community where you live, legal circles can be small and tight knit.

Document Your Emotional Distress

If you want to sue for emotional distress, the first step is to document your stress, including any physical symptoms. As noted above, physical manifestations of your mental suffering make your case much stronger.

Discuss Suing for Emotional Distress with an Attorney

Once you’ve gathered sufficient evidence, you should meet with an attorney. Your attorney should be able to review your evidence and determine whether or not you have a case. Your attorney can also help you gather more evidence and prepare for trial.

Pre-Trial Preparations for an Emotional Distress Lawsuit

With the assistance of your lawyer, your next step is to file the claim for intentional infliction of emotional distress.

After the case is filed, the defendant is served and the trial preparation period begins. Discovery — the exchange of information between parties to a lawsuit including depositions, documents and written questions and answers — takes place before the trial begins.

Trials and Settlements in an Emotional Distress Case

On a date set by the court, the trial will occur. Your attorney will present evidence supporting your claim and attempt to undermine any defenses offered by the other side.

A trial ends after both sides have rested and a verdict is reached, either by the jury or the judge.

At any time, however, there may be a settlement offer. You and your attorney may even approach the defendant about a settlement before filing the lawsuit. Likewise, the defendant may try to negotiate a settlement during the pretrial preparations, after the trial has begun, or even while the jury is deliberating.

Proving an emotional distress lawsuit isn’t a walk in the park, but it’s not impossible. Here’s what can help prove emotional distress in court:

• Related physical injury. Suing for emotional distress can be less challenging when you suffered a physical injury in the incident. Emotional trauma is well recognized as arising from physical trauma, whether due to someone else’s negligent conduct or willful behavior.
• The severity of emotional distress. You have a better chance of prevailing in an emotional distress lawsuit if your anguish is considerable and impacts many aspects of your daily life, such as your home life, career, hobbies and more.
• Witnesses and other evidence. Witnesses, such as a psychotherapist providing testimony supporting your case, can be critical. Other crucial evidence can include work records showing missed time, medical bills for counseling, and statements from friends and family.
• Duration and worsening of symptoms. Proving a legal case can be tricky if your emotional distress lasts just a few days. However, you could have a good case if you show a long duration, progression, or even worsening of symptoms. Developing an ongoing condition, such as depression or post-traumatic stress disorder (PTSD), can help prove your case.
• Proving causation. To be successful with a compensation claim, you must show a clear link between another’s negligent or deliberate actions and your resulting emotional distress.

Suing for emotional distress is only possible in certain circumstances. Here’s when you may have a case:

• Emotional distress from a physical injury. Suing for emotional distress with a severe injury is common. For example, if you were seriously hurt in a car accident caused by a drunk or dangerous driver, you’ll likely be entitled to compensation for emotional anguish.
• Intentional Infliction of Emotional Distress (IIED). You can sue for IIED when someone intentionally engages in outrageous or egregious conduct, causing extreme emotional suffering. Examples can include racial insults, threats of violence, stalking and sex discrimination.
• Negligent Infliction of Emotional Distress (NIED). An NIED lawsuit arises when another’s negligence causes you severe emotional suffering. This can occur due to physical injuries or when witnessing another getting injured or killed. In NIED, unlike a bystander lawsuit, the breach of duty must impact you directly.
• Bystander lawsuit. Some states allow you to recover compensation if you witnessed a traumatic event as a bystander. This could be a car accident, severe assault or another type of incident. However, whether you have a case can depend on various factors, including the event’s severity and how closely you’re related to the victim.

Emotional distress can lead to severe consequences that impact all aspects of a victim’s life, including their career and family. Here are some impressive recoveries for emotional distress:

$6 Million Verdict for Emotional Distress in Wrongful Termination Case

A Los Angeles County Superior Court jury awarded a plaintiff just over $6 million for wrongful termination and intentional infliction of emotional distress. The employer, Rite Aid Corporation, suspended the plaintiff after she filed a discrimination case with the U.S. Equal Employment Opportunity Commission (EEOC), alleging discrimination and harassment by a supervisor.

$5.7 Million Verdict for Intentional Infliction of Emotional Distress

In 2006, an Orange County doctor sued his former employer, Integrated Healthcare Holdings, Inc. (IHHI), for intentional infliction of emotional distress based on the chief executive officer’s conduct. At trial, the jury found that the CEO tried to “humble” the plaintiff by having him arrested after arranging the placing of a loaded handgun in his vehicle.

The CEO also arranged for the plaintiff’s daughter’s car tires to be slashed, leading to her involvement in a serious car accident. The jury awarded the plaintiff $5.7 million in compensation and punitive damages for intentional infliction of emotional distress.

$3.5 Million Verdict for Physical Injuries and Emotional Distress

The plaintiff, a 54-year-old woman, was involved in a rollover accident with a negligent truck driver. Her injuries included a mild traumatic brain injury, minor lacerations and contusions. However, the plaintiff developed severe emotional distress after the accident, including symptoms of PTSD, such as nightmares and fear of driving.

Her physical and mental symptoms after the accident left her unable to work in her profession, nursing, and resulted in her termination. The verdict of $3.5 million included a significant amount for emotional distress.

$2.4 Million for Workplace Retaliation

In this high-profile case, the two plaintiffs were the Oregon Department of Corrections employees when they reported their employer’s alleged violations of state and federal laws. The victims stated that due to them sharing this information, they were demoted and reassigned. A Marion County jury awarded the plaintiffs $1.6 million for economic damages and $850,000 for emotional distress.