Emotional distress, sometimes referred to as mental anguish, is a non-physical injury often asserted in civil lawsuits. It is considered a state of mental suffering triggered by an extremely traumatizing experience, usually of a physical nature. Bystanders and individuals who personally experienced the trauma, along with their relatives, can assert a civil lawsuit alleging emotional distress.

Emotional distress may be exhibited by feelings of anxiety, panic, stress, humiliation, insomnia, guilt, depression or other self-destructive thoughts. The law recognizes that this type of mental injury can result from the actions of another person that can either be intentionally inflicted or accidental.

Is Suing for Emotional Distress Difficult?

It can be difficult to prove emotional distress regardless of which state in the U.S. you bring your lawsuit. This is particularly so because the plaintiff has the burden of proof in civil cases for most types of claims, unlike in criminal cases.

It is easier to prove your claims when there is some physical evidence of the emotional distress (i.e. ulcer or miscarriage), but emotional distress cases do not always have accompanying physical evidence. Therefore, you will need the expertise of trained professionals who can persuade the jury that your claims are legitimate. The expert will need to be a doctor or mental health professional who can show that your suffering is ongoing and serious.

In some cases, jurors might even think the plaintiff is over-exaggerating or being hypersensitive. Furthermore, the plaintiff who asserts a claim for emotional distress — especially where there is no physical injury — may have to show that the defendant’s conduct was particularly extreme under the facts of the case.

In other words, people routinely insult each other all the time, so the circumstances must show that the defendant’s action can objectively and reasonably be considered extreme and outrageous by social standards.

When Do I Bring My Emotional Distress Claim?

In tort claims like emotional distress there are statutes of limitations that dictate the time period in which you can file your claim. So, it is important that you work with your attorney to make sure your claims are brought within the time allotted by your state for doing so.

As soon as you know your emotional distress was caused by the defendant’s actions, you should do everything you can to preserve your claim. That means documenting your own medical condition as well as the defendant’s actions, especially when they are of a continuing nature (i.e. stalking or bullying).

Your state’s laws will dictate whether or not you can recover for your emotional distress claim and whether you can sue for intentional and/or negligent infliction of emotional distress based on the facts of your specific case.

For example, your state may require that the emotional distress was caused by a physical injury or that you were closely related to someone who did suffer physical injury.

Examples include the following scenarios:

  • You witnessed the death or injury to your family member;
  • You were a bystander in an event that caused you fear of death or injury and you were actually in the “zone of danger” for emotional distress claims (i.e. you were present in the immediate area of the defendant during a school shooting and you could have suffered great bodily injury); or
  • You are in a “fragile class” (i.e. children, elderly persons and pregnant women).

Note that none of these scenarios involve persons who are unusually sensitive. Your reaction to the alleged emotional distress trigger has to be reasonable.

What Types Of Emotional Distress Claims are There?

Emotional distress claims can assert that the defendant’s actions were either negligent or intentional.

  • Negligent Infliction of Emotional Distress (NIED) occurs when the defendant’s action is accidental or unintentional. There must be a causal connection between the defendant’s action and the emotional distress the plaintiff suffers.
    • For example, a plaintiff may decide to sue an employer for the action of a co-worker who created a hostile work environment for the plaintiff. Despite repeated complaints to supervisor about the co-worker’s conduct, the employer failed to take reasonable steps to stop the co-worker’s actions that lead to the employee’s emotional distress. As a result, the plaintiff suffers from post-traumatic stress disorder and insomnia and can sue for NIED.
  • Intentional Infliction of Emotional Distress (IIED) scenarios involve the defendant engaging in conduct that is deliberate or reckless. The conduct in these types of cases is generally quite outrageous and severe. This can be a standard that is difficult to prove.
    • For example, while humiliating, having an employer fire you and escort you out in handcuffs would not rise to the level of IIED, as such treatment is typically not considered outrageous or severe.

Should I Consult an Attorney for Help with an Emotional Distress Claim?

Proving an emotional distress claim can often be difficult, particularly when there is no accompanying physical injury or trigger. States will vary as to what will be required to establish a claim for emotional distress. Consult with a qualified personal injury attorney to help you file your emotional distress claim.