How to sue for emotional distress?
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.
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.
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:
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 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:
Emotional harm is another category of non-economic damages that may be available if you prove your tort case.
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:
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.
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:
Let's break these elements down.
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.
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.
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:
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.
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:
But your state may require you to prove additional elements.
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.
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.
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.
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.
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.
Upon choosing Mr. Mott as my attorney, I didn’t expect timely results. With effectiveness, determination, courageous spirit, analytical skills, and dedication, I felt honored. I truly appreciate you didn’t give up on me, or my case, and that you resolve my case efficiently. I would not hesitate to recommend your firm to anyone in need of a professional lawyer. Thank you very much for your service to me. I’m beyond grateful!
The most responsive, attentive, professional and trustworthy law firm in Vegas. I highly recommend anyone to look into Valiente Mott as their first option for legal council. I couldn’t be more thankful for the way they took care of my case. Big thanks to Tim and his team!
Amazing! They got me way more money than I ever expected, they were always able to answer questions whether I texted or called. They always update me throughout the process. Will use them again in the future without a doubt and will recommend my family and friends. Thank you guys so much!!!!!
Oriana G. Ramos
Tim and his team are great! They were quick to respond whenever I had a question about my case or if I had any concerns. I’m very appreciative with everything this law firm has helped me with. Thanks guys for being so professional!
I’ve had the pleasure of working with Tim Mott and the Valiente Mott team for nearly a year now. Tim (one of the founders) is an incredibly bright, genuine, caring human being. At every moment, you can tell by his demeanor, personality, and work ethic that he always has your best interests at heart.
Tim is more than a lawyer, he’s an ally, a friend, everything you need during the hardships you may face during a legal case. Do yourself a favor and have them represent you!
Veronica de Lucas Heath
They were very professional and at the same time concerned about my family and I. I received my settlement in a timely matter. Thank you all for your help. They work as a great team to help you ASAP. I recommend them to anyone who needs a lawyer.
I highly recommend Valiente Mott! I had the privilege of working with Mike Valiente and Tim Mott before they founded their firm and I can attest to the quality of their work. They are very intelligent, incredibly hard-working, and very compassionate–such a rare and valuable combination. I hope never to need their services, but if I ever do, I would trust them with my case.
Best experience ever dealing with an attorney. Took time to explain to me all my options. Best choice I’ve ever made. 100% satisfied.
First time I’ve ever experienced anything to do with a lawyer. It was nothing but amazing and very easy I did little to no effort and they did all the grunt work for me. I will always recommend valiente Mott for people that are in need of their services. I couldn’t be more happier from what they have done for me and my family! Thank you very much.
The entire experience was excellent! I was helped every step of the way and all of my questions were answered promptly and all of my needs were professionally met. I recommend Valiant and Mott to anyone needing quality, and professional attorneys who will treat you as an important client whether your case is large or small. My highest recommendation!
- The defendant had a duty to behave reasonably and to not behave outrageously or in an extreme manner likely to cause distress.
- The defendant breached that duty by intentionally or recklessly behaving outrageously.
Following an accident or traumatic event, it is possible to sue for emotional distress. To recover damages in such claims, though, you will need to show that your mental anguish was caused by another person’s actions.
Emotional distress, also known as mental anguish, is legally defined as a highly unpleasant emotional reaction such as fury, humiliation, or anguish that results from another person’s conduct or actions. The causes of emotional distress vary significantly from person to person, and each person’s reaction can involve a combination of factors that impact their symptoms, treatment, and recovery.
Emotional distress under Illinois statutes is defined as significant mental suffering, anxiety, or alarm. It is often caused by some type of traumatic experience such as a car accident, a major health issue, a death in the family, or witnessing a frightening event. Victims of emotional distress may suffer a variety of different symptoms. Common symptoms include the following:
The symptoms of emotional distress are similar to those of depression and anxiety disorders. Depending on the severity of symptoms, people suffering from emotional distress often require mental health counseling or psychiatric treatment to show significant improvement.
To sue for emotional distress in court, the conduct or actions caused by another person must be either negligent or intentional. If negligence or intentional harm applies, you can sue for emotional distress and seek compensation for damages.
When any act of negligence occurs, it is common knowledge to most people that you can file a lawsuit against the at-fault party for damages. However, many people don’t realize that you can also sue for emotional distress. Experiencing a serious accident can not only result in physical injuries but emotional suffering as well. Compared to physical injuries, emotional distress can be difficult to quantify. However, the damages and the impact on victims are still very real. Filing a lawsuit for emotional distress allows the injury victim to recover compensation for his or her mental suffering or anguish.
The courts recognize emotional distress as a type of damage that can be recovered through a civil lawsuit. This means you can sue someone for emotional trauma or distress if you can provide evidence to support your claim. Knowing when to hire an injury lawyer in Chicago who can build a case based on emotional distress may help you collect compensation for physical injuries, as well as emotional trauma.
The legal definition of emotional distress clearly states that the victim’s mental anguish must be caused by another person’s negligent or intentional actions. For a lawsuit to hold up in court, certain criteria must be met.
The victim (the plaintiff) must prove that the defendant inflicted emotional distress due to negligent actions or intentional infliction. Negligence indicates that the person who caused harm (the defendant) failed to act with a level of care that a person of good judgment would have exercised in the situation. Intentional infliction means that the defendant intended to cause harm or showed reckless indifference.
A victim suing for emotional distress must be able to prove that he or she suffered mental anguish as a result of the defendant’s actions. The plaintiff must provide accurate information as valid evidence. This may include medical records that show treatments and prescription medications, eyewitnesses to the incident, and testimony from qualified medical professionals providing treatments.
Typically, Illinois emotional distress law follows the impact rule. According to the impact rule, the victim (the plaintiff) must be physically hurt, as well as suffering from mental anguish to sue for emotional distress. Mental suffering is defined as an emotional response to an experience that arises from the effect or memory of a particular event, occurrence, pattern of events, or condition. Emotional distress can usually be discerned from its recognized symptoms such as anxiety, depression, loss of ability to perform tasks, and physical illness.
Emotional distress is often linked to certain types of accidents that may cause additional trauma. These often include:
When severe accidents occur, victims commonly struggle with physical injuries that have life-altering consequences. Fractures and broken bones, burns, brain injuries, and spinal cord damage can completely alter a person’s emotional well-being and quality of life. Botched medical procedures and unnecessary surgical procedures can leave a person crippled and in constant pain. Complications in the delivery room with mothers and infants can result in psychological birth trauma.
Acts of war and intentional acts of violence commonly cause severe trauma that results in life-long battles with PTSD for soldiers and civilians. When someone is shot or fatally injured in a gun-related incident, family members of the deceased person often file wrongful death lawsuits involving guns. Witnessing the wrongful death of another person can be a traumatic incident. Wrongful death witnesses often struggle with severe mental anguish, making it difficult to cope with life and work.
Research on the psychological impacts of wrongful conviction shows that people wrongfully arrested for a crime face a range of difficulties readjusting to life. With the many problems they face, mental health issues are common. Victims of false arrests can seek emotional distress damages to compensate for their mental anguish and any subsequent expenses from care received, such as assessments, counseling, and medications.
Like pain and suffering, suing for emotional distress is subjective and often difficult to measure. Emotional distress can often qualify for both general damages and special damages. Because of this, if you sue for emotional distress, your damage awards may amount to two to five times the total costs of medical bills, lost wages, rehabilitation and therapy expenses, and medication costs. This amount can vary significantly on a case-by-case basis, however. These damages are determined based on a number of factors including total out-of-pocket cost, damages caps, and the severity of your pain and suffering or emotional distress.
Some PTSD lawsuits have settled for between $50,000 to $100,000. To prove PTSD in court often comes with challenges, and a plaintiff must have proper expert testimony. Jurors will want to hear from a treating psychologist or psychiatrist and see that the victim has undergone a significant course of treatment. An opinion from a specially retained expert is often not as convincing as the opinion from a treating physician. In cases involving veterans, one of the most common reasons the VA gives for denying PTSD claims is lack of evidence. Obtaining the evidence the VA wants to see to approve a claim can be a challenge to many victims.
Since it is very hard to put a price on how much your emotional distress is worth, you will need to clearly show how the emotional problems are affecting you if you want to receive compensation. The best option is to consult with an experienced, qualified personal injury attorney who can explain the process of establishing emotional distress. A legal representative may also help you coordinate appointments with therapists and psychiatric professionals who can help to document your injuries.
The purpose of making an insurance claim or filing a lawsuit after an accident is to make the victim whole. To this end, damages awarded are meant to put the victim in the position that he or she would have been if the accident had not happened. In calculating compensation for emotional distress, the more severe the emotional distress, the more compensation that’s warranted.
The legal emotional distress definition makes it clear that the victim’s mental anguish must be due to another person’s actions.
For emotional distress damages to hold up in court, several criteria must be met.
The plaintiff (victim) must prove that the defendant inflicted the emotional distress intentionally or due to negligence. Intentional infliction means that the person intended to cause harm or showed reckless indifference.
Negligence indicates that he or she failed to act with a level of care that a person of good judgment would have exercised in the situation.
When suing for pain and suffering, it’s important that you provide as much accurate information and evidence as possible.
Victims must be able to prove that they suffered mental anguish.
Tangible evidence for this claim could include medical records, lists of prescriptions, witnesses, and testimonies from qualified medical professionals such as a therapist or psychiatrist.
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 claim negligent infliction of 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 .
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 are not in the intersection when the driver goes through and were never personally in danger, however, you witness 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 a suit. Bystander cases are typically limited to family members such as parents, grandchildren, children, siblings or relatives you live with.
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 :
To prove emotional distress, you’ll need to be able to prove:
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 sue for emotional distress even if they were not the target themselves .