Sunday, August 14, 2011

Torts: Infliction of Emotional Distress (Intentional & Negligent)

I've been asked fairly often to distinguish between the torts of intentional infliction and emotional distress, and negligent infliction of emotional distress. On an MBE fact pattern, you will first need to determine which tort is implicated, and then understand the differences between the two so that you can eliminate all answer choices that do not apply to that particular tort.

Intentional Infliction of Emotional Distress:

As a starting point, you'll need to know that in the law of torts, intent falls under two distinct categories: specific intent, and general intent. Specific intent exists where the defendant acts desiring that his conduct cause the resulting consequences. A less obvious definition of intent, but one that equally applies, is general intent, which merely requires that defendant acts knowing with substantial certainty that his conduct will cause the resulting circumstances.

Interestingly, though the word "intentional" is within the term "intentional infliction of emotional distress," neither of the two definitions of intent above is required for this particular tort. This is, in fact, the only intentional tort with which recklessness will suffice. Specifically, one who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distres to another is subject to liability for such emotional distress, and if bodily harm is also caused, then liability will attach to the resulting physical bodily harm as well. To recover, actual damages must be proven, but note that bodily harm is not necessary; emotional distress alone will suffice.

In fact, liability can attach even if the extreme and outrageous conduct is not directed at you, personally. Where such conduct is directed at a third person, and that third person is your family member, provided you are present at the time to witness the conduct, you can recover for intentional infliction of emotional distress, regardless of whether you suffer any bodily harm from witnessing the conduct. If, on the other hand, the third person is not a member of your family, recovery will only be allowed if bodily harm results from witnessing the conduct.

Negligent Infliction of Emotional Distress:

Where the defendant's negligence (as opposed to intent or recklessness) causes mental disturbance, and physical ailments, recovery is available for negligent infliction of emotional distress. The essential difference here, and one that is often tested, is that, for the most part, physical injury or illness is necessary for recovery.

There are a few exceptions to the rule that physical ailments are required. One exception is a situation in which a hospital negligently misinforms a person that a member of that person's family has died. In such a situation, even though fault only lies on a theory of negligence, recovery will be allowed for emotional distress alone. Another exception is to allow recovery for emotional distress alone if the negligent mishandling of a corps leads to the emotional distress of another. (negligent embalming, negligent shipping of a casket, etc.)

Finally, as discussed above with the tort of intentional infliction of emotional distress, recovery is available for third persons who witness the negligent infliction of emotional distress upon another. However, here, it will not be enough to prove that one has witnessed the conduct upon another; rather, one must prove that he/she was in the zone of danger and was threatened with injury by defendant's negligence. For example assume, that "A" is driving her car negligently down a steep road in a residential neighborhood. "B" and her child "C" are both in the path of the car. If A swerves to avoid B, and hits C, B can recover even if B was unaware that she was in any danger. The fact that B was, in fact, in the zone of danger, provided that B suffers mental distress, and physical ailments (ie., severe shock) from witnessing injury to her child, C, then recovery will be available to B.


  1. I am pleased that emotional distress will suffice to receive damages from outrageous recklessness because I have a hell of a case to win.


  2. Thank you for your explanation.

  3. Could you recap the elements of Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress?

    Also is there such a claim as bystandar Intentional Infliction of Emotional Distress?

    I just did a practice MBE where a plaintiff “suffers a minor heart attack” due to the “emotional strain of seeing his spouse attacked” and sues for emotional distress under the “majority rule”. The correct answer was that the plaintiff wouldn’t recover because he was “never in danger of being attacked”.

    . . . I don’t get it. . . .

  4. Will post this as a question on the blog. Thanks.

  5. Was there a response to the above MBE question? It seems like the plaintiff should recover. The conduct was directed at a third person, and that third person was an immediate family member (spouse), and the plaintiff was there to witness the attack?

    1. It's certainly possible for the plaintiff to recover. The key is to realize that if the conduct is directed at someone, it's intentional (as opposed to negligent) infliction, and the analysis is slightly different among the two for bystander cases. For example, to recover as a bystander for intentional infliction of emotional distress, the plaintiff can either prove the traditional elements of the tort, or prove that he was present when the injury to another occurred, that he was a close relative to the person injured and that the defendant knew that plaintiff was there and that plaintiff was a close relative. Make sure not to forget that 3rd element (knowledge on the part of the defendant).