Emotional Distress

What is Emotional Distress?

It is often very difficult to recover damages for injuries that resulted in emotional distress. Unlike a broken bone or other physical injury, it is often hard to definitively prove your injuries. Thus, it is important to understand the different types of emotional distress claims that you may make before attempting to file a lawsuit based on emotional distress.

Emotional distress, also known as “mental anguish,” is a non-physical and mainly psychological injury that may be asserted in civil lawsuits. In short, the law recognizes emotional distress as a state of mental suffering that occurs because of an experience caused by the negligence or intentional acts of another, usually of a physical nature. 

Mental anguish is a legal term that refers to a strong degree of psychological injury that a person suffers as the result of a traumatic experience. Mental anguish is an important part of claims for both negligent infliction of emotional distress and intentional infliction of emotional distress. These two types of claims are often linked to other personal injury lawsuits also.

Bystanders or individuals who personally experienced the emotional trauma, along with their relatives, may be able to assert a civil lawsuit alleging emotional distress. Emotional distress may be exhibited by feelings of humiliation/shame, insomnia, depression, self-destructive thoughts, anxiety, stress, or another emotional response resulting from a traumatic event. 

It is important to note that in most cases, you may only be able to sue for emotional damages if the incident in question resulted in physical harm. However, as of June 2019, some courts have recognized a right to award monetary damages for emotional distress claims without a showing of actual physical harm in cases of sexual harassment or defamation. 

In these cases expert witness testimony from a therapist or psychiatrist may be used to prove a plaintiff's case of emotional distress, as well as evaluate the range of monetary damages associated with the injury. 

How is Mental Anguish Defined?

Mental anguish is characterized as emotional pain or psychological symptoms that arise as a result of another person's negligence. To meet the legal definition, a person's anguish needs to be more severe than ordinary disappointment, embarrassment, anger or upset.

Mental anguish in the law has been described as an extreme feeling of fear and grief that causes lasting negative side-effects. Conditions such as anxiety, depression, and post traumatic stress disorder are examples of the kind of mental states that can qualify as mental anguish. Usually the mental anguish must be more than just emotional. It must manifest itself in the daily activities of a person's life.

The symptoms of mental anguish can be any of the following:

• Phobias: fear of engaging in certain activities because the victim is afraid of being injured again; an example would be agoraphobia, a fear of leaving one's home;
• Anxiety: extreme anxiety of the type that interferes with a person's ability to engage in the usual activities of everyday life; it might involve symptoms such as panic attacks;
• Depression: depression so significant that it requires a doctor's care;
• Insomnia: an inability to sleep normally;
• Inability to concentrate: the victim may suffer consequences because they cannot focus on their job, academic studies or other activities; and
• Physical symptoms: a person may have physical symptoms such as headaches, nausea or tremors.
• Proving the degree of psychological harm that qualifies as mental anguish would probably be strengthened by the testimony of a licensed physician.

What is Considered Severe Emotional Distress?

“Severe emotional distress” is narrowly defined in the context a Negligent Infliction of Emotional Distress claim. Basically, the plaintiff must show that some sort of substantial, verifiable physical injury accompanies their emotional distress.

In other words, the plaintiff cannot recover for distress that is solely psychological or imagined. Examples of physical injury or symptoms that would constitute severe emotional distress would be:

• Elevated blood pressure;
• Nausea, vomiting, or intestinal discomfort;
• Insomnia;
• Nervous system disorders; and/or
• Overall physical illness.

Thus, the more that the emotional distress is accompanied by physical symptoms, the greater the chances of recover are for the plaintiff. If the emotional distress is not accompanied by any physical symptoms at all, then the plaintiff will likely have difficulties in proving their claim.

What is Negligent Infliction of Emotional Distress?

Negligent Infliction of Emotional Distress is a specific type of emotional distress legal cause of action. It occurs when one person does something to cause severe emotional distress to another person. It is similar to Intentional Infliction of Emotional Distress, except that it occurs unintentionally or by accident. To recover from a NIED claim there are certain elements that have to be present:

• Foreseeability: The defendant must have been able to reasonably foresee that his or her activities would have caused the emotional distress.
• Zone of Danger: The plaintiff must be in a "zone of danger" and at risk of physical harm, causing fear.
• Impact Rule: The defendants actions caused damages to plaintiff

In several states, a physical injury must actually cause the emotional distress. In a minority of states, no physical injury is required if the emotional distress was caused by negligence. But what is required in the case of assault?

Can a Bystander Recover for Negligent Infliction of Emotional Distress?

Sometimes a bystander may suffer emotional distress after witnessing a victim being assault. Recovery for bystanders is extremely limited in assault cases. In order to recover, the bystander must prove:

• The defendant acted negligently in committing the assault;
• The defendant's assault was the cause of injury to the victim;
• The bystander was the victim's parent, spouse, or child (Immediate family member is required);
• The bystander was present at the scene of the assault during its occurrence;
• The bystander was aware that the assault caused an injury to the victim; and
• The bystander suffered serious emotional distress as a result of the above.

Is it Hard to Sue for Emotional Distress?

As noted above, emotional distress cases are tricky, due to the nature of having to prove an injury that you cannot physically see (like chronic anxiety versus a broken leg) Therefore, cases in which emotional distress damages are claimed must be backed by solid documentation that will prove to the court that you have suffered actual damages. 

In some cases this may mean a therapist, doctor, or psychologist diagnosing you with depression, post traumatic stress disorder (“PTSD”), or other mental health condition. This means that the use of expert witness is often necessary to help prove to a court that you both suffered an actual injury and the amount of damages that resulted from that injury. Because of the use of expert witnesses, suing for emotional distress is often very expensive. 

However, if you have a valid claim for severe emotional distress, a personal injury attorney may take your case on a contingency fee basis, which will save you from having to pay high case fees yourself.

In addition to the numerous amount of evidence you must have to prove damages, you must also be able to prove the other elements of an emotional distress claim. This means you must prove that the incident that caused the emotional distress was due to the intentional or reckless acts of a person who acted with extreme or outrageous conduct, and it resulted in your suffering of severe emotional distress.

Outrageous conduct means more than mere insults, threats, annoyances, or petty oppressions. For example, someone shouting at you that they hope you die would not result in a valid claim of emotional distress, but someone falsely informing you that your child or a close family member had been killed may. 

How Can I Prove Negligent Infliction of Emotional Distress?

To prove negligent infliction of emotional distress, the plaintiff need not prove that the defendant acted purposefully or willfully in creating the emotional distress. Instead, most jurisdictions require that the following elements be satisfied:

• The defendant engaged in conduct that was negligent or was a willful violation of statutory standards;
• The plaintiff suffered severe emotional distress;
• The defendant's conduct was the direct cause of the emotional distress;
• The action was foreseeable by defendant; and
• The plaintiff was in a “zone of danger”.

Can a Bystander Recover for Negligent Infliction of Emotional Distress?

Sometimes a bystander may suffer emotional distress after witnessing a victim being assault. Recovery for bystanders is extremely limited in assault cases. In order to recover, the bystander must prove:

• The defendant acted negligently in committing the assault;
• The defendant's assault was the cause of injury to the victim;
• The bystander was the victim's parent, spouse, or child (Immediate family member is required);
• The bystander was present at the scene of the assault during its occurrence;
• The bystander was aware that the assault caused an injury to the victim; and
• The bystander suffered serious emotional distress as a result of the above.

What is the Zone of Danger?

Most jurisdictions require that a person making a claim for emotional distress be within the “zone of danger.” In legal terms, the zone of danger is the area within which one is in actual physical peril from the negligent conduct of another person. This means that often in order to recover for emotional distress, you must either be directly injured yourself or you were also in danger of physical injury. 

For example, if you were in a car wreck with your family due to the negligent driving of a drunk person, you may be able to recover for the emotional distress you suffered from both your physical injuries and injuries to your family. 

Another example is where a drunk driver drives onto a sidewalk and hits a child walking with their family. In that case, the family members, who were also in danger of being physically injured by the driver, may recover for the emotional distress that they suffered. 

If the plaintiff wants to recover in a NIED claim, the plaintiff bystander must have been in the “zone of danger” of the attack, meaning that they themselves must also have been exposed to the risk of injury from the assault.

Their emotional distress must also be accompanied by physical symptoms. If any of these elements is lacking, then the bystander will not be permitted to recover. For example, if the person was not related to the victim, or if they merely heard about the assault but did not witness it, they cannot recover for emotional distress. 

What Type of Emotional Distress Claims are Available?

As noted above, there are two main types of emotional distress claims. The different types of claims available for emotional distress include:

• Negligent Infliction of Emotional Distress: This claim for emotional distress occurs when a defendant's actions are accidental or unintentional. However, there must still be a causal connection between the defendant's action and the emotional distress the plaintiff suffers. For instance, cases where a person witnessed the death or injury to their family member from a drunk driver may qualify for negligent infliction of emotional distress; and 
• Intentional Infliction of Emotional Distress: This claim for emotional distress occurs when a defendant's actions are intentional or reckless. For example, an employer having you fired and escorting you out in handcuffs may be humiliating, that treatment would likely not rise to a level of intentional infliction of emotional distress. 
  • However, a case where you have been diagnosed with post traumatic stress disorder due to having been repeatedly subject to bullying and workplace harassment, and your employer knew but took not action, may be likely to succeed. 

When Can I Bring My Emotional Distress Claims?

Importantly, emotional distress claims have a time limit in which they must be brought, known as a “statute of limitations.” Thus, it is important that you consult with an attorney immediately in order to make sure that your claims are brought within the time limit specified by your local jurisdiction. A typical statute of limitations period for most claims of negligent or intentional infliction of emotional distress is two years from the date of injury.  

What Damages Can I Recover for Negligent Infliction of Emotional Distress Claim?

You may recover general damages and specific damages in a NIED claim. General damages compensate for the injury itself, the most commonly known type is damages for pain and suffering. Other types of general damages are awarded for ongoing disability, or disfigurement. The amount of general damages will depend on:

• Severity of the injuries;
• Pain and suffering;
• Your future medical prognosis; and
• Any pre-existing injuries.

Specific damages, also called special damages, compensate for measurable monetary loss resulting from the injury. Specific damages cover both past and future lost wages, medical bills, and other consequential costs. The amount will depend on:

• Amount of medical bills;
• How the injuries have affected your ability to work; and
• How the injuries have affected your lifestyle.

Do I Need a Lawyer to Sue for Emotional Distress?

As can be seen, proving an emotional distress claim is often a difficult matter, especially where you do not also have a physical injury. Further, emotional distress cases are often very expensive to bring, due to the nature of having to hire expert witnesses, such as a therapist, doctor, or psychologist to prove the extent of your injuries and the amount of money needed to allow for a proper recovery. 

Additionally, state laws will vary as to what will be required to properly prove a claim for emotional distress. For all of these reasons, consulting with a well qualified and knowledgeable personal injury attorney may be in your best interests. 

An experienced personal injury attorney will help evaluate your case, build evidence to prove your injuries, hire expert witnesses, represent you in court, and even may take you case on a contingency fee basis to help you with the hire case fees associated with cases involving claims for emotional distress.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.

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