When Can You Sue for Emotional Distress

Emotional distress or emotional harm can often be just as painful as a physical injury. This post will provide a detailed, reliable answer to the very common question of when someone can file a lawsuit and get damages for emotional distress.

What is Emotional Distress?

Emotional distress is a legal term that is used to describe mental pain, suffering, or anguish that is caused by the negligent or intentional actions of someone else. Tort law in the U.S. generally recognizes emotional distress (often referred to as “pain & suffering”) as a type of injury for which monetary damages can be awarded. In most states, however, damages can only be awarded for emotional distress if the emotional distress is directly caused by physical harm.

The concept of emotional distress can include many different types or manifestations of mental suffering, including anxiety, depression, insomnia, fatigue, weight gain, etc.

Emotional Distress and Physical Harm

Traditionally under common law, plaintiffs in tort cases could only recover damages for emotional distress or pain & suffering that was directly linked to physical injuries. So if the plaintiff suffered a broken leg in an auto accident, they could get damages for pain & suffering caused by the broken leg. If the emotional distress was not related to a physical injury, however, damages were not permitted. This meant that plaintiffs could not file a lawsuit based on emotional distress when no physical injury occurred.

Over the years, many states have expanded the traditional common law rule to allow plaintiffs to sue for emotional distress even when there was no related physical injury. For example, certain types of mental injuries, such as post-traumatic stress disorder (PTSD) or depression, can sometimes be the basis of tort claims even without a related physical injury.

Common Types of Emotional Distress Lawsuits

Described below are the commonly recognized types of civil lawsuits that can be brought based on emotional distress only without any related physical injury. The cases fall into two general categories based on whether the emotional distress is the result of negligent or intentional actions.

Negligent Infliction of Emotional Distress

If someone is physically injured as a result of another person’s negligence (e.g., an auto accident caused by negligent driving), they can always file a traditional personal injury lawsuit and seek monetary damages for emotional pain and suffering related to the physical injuries suffered in the accident.

But what if the car accident does not result in any physical injuries, but the shock of the accident results in major psychological trauma such as PTSD? Can you file a lawsuit for negligent infliction of emotional distress even without any physical injuries? In almost all states, the answer to this question is no.

The only way to successfully sue for negligent infliction of emotional distress is if the plaintiff can show that the mental stress directly caused some type of physical reaction. For example, if PTSD or anxiety caused the plaintiff to break out in hives or develop tremors or shakes in their hands. If these physical symptoms can be definitively linked to emotional distress, most states allow damages to be recovered.

Bystander / Zone of Danger Exception 

In most states, claims for negligent infliction of emotional distress are generally not permitted in the absence of physical injury. However, there is one major exception to this rule that applies when the plaintiff is a bystander or within the zone of danger. The bystander rule permits negligent infliction of emotional distress claims without physical injury if the plaintiff is witnesses a friend or relative get physically harmed in close proximity to them.

For example, let’s say a mother is walking across the street at a crosswalk with her 5-year-old daughter right next to her when a negligent driver runs a red light. The driver hits and kills the daughter, but the mother is not touched. Although the mother has no injuries, she suffered major emotional trauma from watching her daughter get killed in front of her. In many states, the mother would be able to sue the negligent driver for intentional infliction of emotional distress because she was in the “zone of danger” when a family member suffered serious physical harm.

Intentional Infliction of Emotional Distress 

A significant number of states recognize and allow lawsuits based on intentional infliction of emotional distress even when the plaintiff has not suffered physical harm. To establish a successful claim for intentional infliction of emotional distress, a plaintiff must prove the following elements:

  • The defendant engaged in conduct that was “extreme and outrageous” and directed at the plaintiff
  • The defendant acted intentionally or recklessly
  • The plaintiff suffered serious emotional distress as a result

Each of these separate elements is discussed below.

Extreme and Outrageous Conduct

The first element of the tort of intentional infliction of emotional distress (IIED) is extreme and outrageous conduct by the defendant. The precise definition of extreme and outrageous actions differs widely among those states that recognize the tort of IIED. Generally speaking, however, to meet the “extreme and outrageous” threshold, the defendant’s actions must be more than just offensive, insulting, or even malicious. The standard is necessarily high, otherwise, every person with hurt feelings would be able to file a lawsuit.

To rise to the “extreme and outrageous” level, the defendant’s actions must be well beyond the limits of human decency. What that means is obviously very subjective and often depends on the circumstances of the case. Ultimately, whether the defendant’s conduct rises to the level of extreme and outrageous is a question for the jury to decide. One example of conduct that would probably be considered extreme and outrageous would be repeated racial slurs.

Intentional or Reckless

The second element requires the plaintiff to prove that the defendant acted intentionally or recklessly. This means that the plaintiff must show that the defendant specifically intended to cause severe emotional distress or reasonably should have understood that their actions would cause serious emotional distress. Proving intent is always somewhat tricky because, in the absence of an admission, it requires the use of circumstantial evidence to establish what the defendant was thinking.

Severe Emotion Distress

The final element requires the plaintiff to show that as a result of the defendant’s intentional actions, they suffered severe emotional distress. The key term here is “severe.” Ordinary emotional distress is not enough. The plaintiff needs to show that the level and severity of the emotional distress that they suffered was well beyond what a normal person would be expected to endure. Duration, intensity, and any physical symptoms connected to the emotional distress can be used to help establish this element.

How Do You Prove Emotional Distress in Court?

Proving emotional distress in court typically requires presenting evidence and establishing certain elements to demonstrate the impact and severity of the distress. The exact requirements will vary depending on jurisdiction and the specific context of the case, but here are some general considerations:

  • Direct Testimony: The individual claiming emotional distress may provide their own testimony describing their experiences, feelings, and the impact the distress has had on their life. This can include details about the specific incidents or actions that caused the distress and the resulting emotional and psychological effects.
  • Expert Witness Testimony: Mental health professionals, such as psychologists or psychiatrists, can provide expert testimony to support the claim of emotional distress. They can evaluate the plaintiff and offer their professional opinion on the nature and severity of the distress, its causation, and any long-term effects.
  • Medical Records: Medical records and documentation from healthcare providers may be relevant in establishing the existence and extent of emotional distress. These records can show diagnoses, treatments received, medications prescribed, therapy sessions attended, and any other medical evidence that supports the claim.
  • Corroborating Witnesses: TTestimony from friends, family members, or other individuals who have observed the plaintiff’s emotional distress or its effects can be invaluable.   When you get testimony corroborating the plaintiff’s claims from someone other than the plaintiff, it makes the case much stronger.

Emotional Distress in Birth Injury Lawsuits

Courts are increasingly recognizing emotional distress as part of medical malpractice claims generally and birth injuries in particular. Along these lines, in 2023, the Connecticut Supreme Court ruled that a mother, who faced a traumatic delivery resulting in her son’s permanent injuries, can proceed with her lawsuit against a  hospital for emotional distress.  The mother had experienced a series of complications leading to a painful delivery process and a cesarean section that left her child with severe injuries. She initiated a lawsuit both on her son’s behalf and for her own severe emotional distress from the ordeal.

The Connecticut Supreme Court upheld the trial judge’s refusal to dismiss the claim. The court noted the prevailing view that a mother and fetus are physically and emotionally inseparable before birth. Thus, any physical injury to the child during birth is also a physical injury to the mother, making both joint victims of potential medical malpractice. The court’s focus was specifically on the mother’s claim of emotional distress due to her child’s injuries.

Emotional Distress Verdicts and Settlements

Below are summaries of verdicts and settlements from emotional distress cases won involving claims for intentional or negligent infliction of emotional distress. Keep in mind that intentional or negligent infliction of emotional distress is rarely asserted as a standalone claim in a lawsuit. It is more often included as an additional claim in connection with other intentional tort claims, such as wrongful termination or false imprisonment.

  • $247,500 Settlement (New Jersey 2023): In this very sad case, a 3-year-old girl was riding her tricycle when she was hit head-on by the defendant’s vehicle and killed. The accident was witnessed by the girl’s mother and two minor siblings. All 3 of them sued the driver for emotional distress caused by witnessing the violent death of the little girl. This is one of the few situations in which most states allow claims for negligent infliction of emotional distress.
  • $2,417,523 Verdict (Oregon 2023): In this employment discrimination lawsuit, a pair of plaintiffs reported what they reasonably believed to be violations of state and federal laws committed by the Oregon Department of Corrections. They claimed that as a result of coming forward with the information, they were demoted and reassigned. The verdict included #1.6 million for economic damages and $850,000 for emotional distress.
  • $3,500,000 Verdict (Virginia 2023): The plaintiff, a 54-year-old female, was driving on the highway when a truck driver tried to maneuver into her lane behind her vehicle, but there was not enough space, and the truck made contact with the rear of her vehicle, causing her to lose control, veer off the interstate and flip over. The plaintiff allegedly suffered injuries that included a traumatic brain injury and post-traumatic stress disorder. The verdict included a significant emotional distress component.
  • $45,034 Verdict (North Dakota 2022): The plaintiff brought claims against her ex-husband for assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and fraud/deceit, claiming the defendant was negligent through his threats, stalking, and assaults. The verdict included $32,500 for emotional distress.
  • $150,000 Settlement (Idaho 2022): The plaintiff in this case was transgender, nonbinary and a member of the LGBTQ community, and worked at the Boise Public Library for years. The plaintiff brought this action claiming that the Library Director at the time took action to have them terminated after a patron harassed them at a Pride display within the library. The settlement was entirely for emotional distress.
  • $665,000 Verdict (Arizona 2021): A mother and her two sons sued the state child protection agency for IIED and violation of other state laws for allegedly removing the boys from the mother’s home for four months without justification.
  • $411,459 Verdict (Georgia 2020): intentional infliction of emotional distress claims were included along with claims for malicious prosecution for falsely accusing the plaintiffs of committing fraud.
  • $6,012,158 Verdict (California 2018): Plaintiff claimed that she was harassed and wrongfully terminated from her job as a Rite Aide pharmacist in retaliation for taking a leave of absence for mental health. She also asserted claims of intentional infliction of emotional distress.
  • $37,925 Verdict (California 2017): A woman successfully sued her ex-boyfriend for posting sexually explicit videos and photos of her on the internet after they broke up.  Our lawyers get calls on these types of claims far more often than we did just a few years ago.

How Much Can You Sue for Emotional Distress?

Few jurisdictions cap damages for emotional distress.   There are, however, some caps on pain and suffering which can limit how much you can sue and recover for emotional distress claims.


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