Suing For Emotional Distress: How and When to Sue (2024)

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 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.

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 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.

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 prove 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 sue for emotional distress 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.