It is often very difficult to recover damages for injuries that resulted in emotional distress. Unlike a broken bone or other physical injury, it is often hard to definitively prove your injuries. Thus, it is important to understand the different types of emotional distress claims that you may make before attempting to file a lawsuit based on emotional distress.
Emotional distress, also known as “mental anguish,” is a non-physical and mainly psychological injury that may be asserted in civil lawsuits. In short, the law recognizes emotional distress as a state of mental suffering that occurs because of an experience caused by the negligence or intentional acts of another, usually of a physical nature.
Bystanders or individuals who personally experienced the emotional trauma, along with their relatives, may be able to assert a civil lawsuit alleging emotional distress. Emotional distress may be exhibited by feelings of humiliation/shame, insomnia, depression, self-destructive thoughts, anxiety, stress, or another emotional response resulting from a traumatic event.
It is important to note that in most cases, you may only be able to sue for emotional damages if the incident in question resulted in physical harm. However, as of June 2019, some courts have recognized a right to award monetary damages for emotional distress claims without a showing of actual physical harm in cases of sexual harassment or defamation.
In these cases expert witness testimony from a therapist or psychiatrist may be used to prove a plaintiff’s case of emotional distress, as well as evaluate the range of monetary damages associated with the injury.
As noted above, emotional distress cases are tricky, due to the nature of having to prove an injury that you cannot physically see (like chronic anxiety versus a broken leg) Therefore, cases in which emotional distress damages are claimed must be backed by solid documentation that will prove to the court that you have suffered actual damages.
In some cases this may mean a therapist, doctor, or psychologist diagnosing you with depression, post traumatic stress disorder (“PTSD”), or other mental health condition. This means that the use of expert witness is often necessary to help prove to a court that you both suffered an actual injury and the amount of damages that resulted from that injury. Because of the use of expert witnesses, suing for emotional distress is often very expensive.
However, if you have a valid claim for severe emotional distress, a personal injury attorney may take your case on a contingency fee basis, which will save you from having to pay high case fees yourself.
In addition to the numerous amount of evidence you must have to prove damages, you must also be able to prove the other elements of an emotional distress claim. This means you must prove that the incident that caused the emotional distress was due to the intentional or reckless acts of a person who acted with extreme or outrageous conduct, and it resulted in your suffering of severe emotional distress.
Outrageous conduct means more than mere insults, threats, annoyances, or petty oppressions. For example, someone shouting at you that they hope you die would not result in a valid claim of emotional distress, but someone falsely informing you that your child or a close family member had been killed may.
Most jurisdictions require that a person making a claim for emotional distress be within the “zone of danger.” In legal terms, the zone of danger is the area within which one is in actual physical peril from the negligent conduct of another person. This means that often in order to recover for emotional distress, you must either be directly injured yourself or you were also in danger of physical injury.
For example, if you were in a car wreck with your family due to the negligent driving of a drunk person, you may be able to recover for the emotional distress you suffered from both your physical injuries and injuries to your family.
Another example is where a drunk driver drives onto a sidewalk and hits a child walking with their family. In that case, the family members, who were also in danger of being physically injured by the driver, may recover for the emotional distress that they suffered.
Importantly, emotional distress claims have a time limit in which they must be brought, known as a “statute of limitations.” Thus, it is important that you consult with an attorney immediately in order to make sure that your claims are brought within the time limit specified by your local jurisdiction. A typical statute of limitations period for most claims of negligent or intentional infliction of emotional distress is two years from the date of injury.
As noted above, there are two main types of emotional distress claims. The different types of claims available for emotional distress include:
- Negligent Infliction of Emotional Distress: This claim for emotional distress occurs when a defendant’s actions are accidental or unintentional. However, there must still be a causal connection between the defendant’s action and the emotional distress the plaintiff suffers. For instance, cases where a person witnessed the death or injury to their family member from a drunk driver may qualify for negligent infliction of emotional distress; and
- Intentional Infliction of Emotional Distress: This claim for emotional distress occurs when a defendant's actions are intentional or reckless. For example, an employer having you fired and escorting you out in handcuffs may be humiliating, that treatment would likely not rise to a level of intentional infliction of emotional distress.
- However, a case where you have been diagnosed with post traumatic stress disorder due to having been repeatedly subject to bullying and workplace harassment, and your employer knew but took not action, may be likely to succeed.
As can be seen, proving an emotional distress claim is often a difficult matter, especially where you do not also have a physical injury. Further, emotional distress cases are often very expensive to bring, due to the nature of having to hire expert witnesses, such as a therapist, doctor, or psychologist to prove the extent of your injuries and the amount of money needed to allow for a proper recovery.
Additionally, state laws will vary as to what will be required to properly prove a claim for emotional distress. For all of these reasons, consulting with a well qualified and knowledgeable personal injury attorney may be in your best interests.
An experienced personal injury attorney will help evaluate your case, build evidence to prove your injuries, hire expert witnesses, represent you in court, and even may take you case on a contingency fee basis to help you with the hire case fees associated with cases involving claims for emotional distress.