When Do I Have a Case for Negligent Infliction of Emotional Distress

negligent infliction of emotional distress, witnessing a traumatizing event

How to prove emotional distress in your personal injury or accident case

If someone causes you emotional distress, you may be able to recover damages even though you didn't suffer any physical harm.
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If you’re involved in an accident as a result of someone else’s negligent or intentional act, you can file a personal injury lawsuit and demand pain and suffering damages to compensate you for the emotional distress caused by the accident.

But what happens if someone causes you to suffer emotional distress even though they don’t directly cause you physical harm? For example, what happens if someone injures your child in front of you?

In this article, we’ll take a look at 2 controversial causes of action: intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).

What is intentional infliction of emotional distress (IIED)?

Intentional infliction of emotional distress (IIED) is a tort that occurs when a person performs an extreme and outrageous act with the intent to cause someone else to suffer severe emotional distress.

The tort of IIED has 3 elements that a plaintiff must prove to recover damages:

  1. The defendant’s conduct was extreme and outrageous,
  2. The defendant acted with the intent of causing the plaintiff severe emotional distress, and
  3. The plaintiff suffered severe emotional distress as a result of the defendant’s action.

There is no clear test to determine whether conduct is “extreme and outrageous.” However, most courts have adopted the following definition:

“Extreme and outrageous conduct is conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

In other words, extreme and outrageous conduct goes beyond mere indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.

Let’s look at a couple of real cases to clarify the distinction:

Real Life Example: William H. Viehweg v. Vic Tanny International of Missouri Inc.
William Viehweg laid down on the floor after experiencing back pain while taking a shower at the Vic Tanny Health Club in Missouri.

At William’s request, an employee of the health club placed a towel over William’s lower body. William then requested that the employee contact his girlfriend and ask her to bring him some muscle relaxant. The employee did so and William’s girlfriend showed up a couple of hours later. Although William’s girlfriend was not allowed in the locker room, the employee brought William the muscle relaxant and then called an ambulance.

William filed an IIED lawsuit against the Vic Tanny Health Club alleging that the health club: (1) allowed him to lay unclothed and unattended for 2 or 3 hours, (2) refused to allow his girlfriend to come to him in the men's locker room, and (3) failed to advise the paramedics of the most expeditious exit from the facility.

The Missouri trial court ruled that the health club’s conduct was not “extreme and outrageous” enough to constitute a claim of IIED. As the court explained:

“While the defendant's conduct may not be a model of courtesy, the plaintiff has failed to allege conduct so outrageous as to be utterly intolerable in a civilized community.”

Real Life Example: Delane Hurley v. California Department of Parks and Recreation
Delane Hurley was hired by the California Department of Parks and Recreation (CDPR). During her time with the CDPR, Delane’s supervisor asked her overly personal questions, gave her unsolicited personal advice, and often discussed sex and sexual orientation.

What’s more, Delane’s supervisor routinely waited until Delane was present to tell other CDPR employees that Delane had failed her probation at a prior job.

Delane went on medical leave and sued the CDPR.

After trial, the jury returned a verdict against the supervisor on the IIED claim (along with several other claims).

What is negligent infliction of emotional distress (NIED)?

Negligent infliction of emotional distress (NIED) is a tort that occurs when a person’s carelessness (i.e. negligence) causes someone else to suffer severe emotional distress.

To establish a claim for NIED in most states, the plaintiff has to prove 3 elements:

  1. The defendant was negligent,
  2. The plaintiff suffered serious emotional distress, and
  3. The defendant’s negligence was the cause or a substantial factor in causing the plaintiff’s serious emotional distress.

Concerned that frivolous claims would overwhelm the courts (for example, what happens if a plaintiff hears about an act of negligence that occurred in another country and suffers emotional distress as a result?), states have limited NIED claims by adopting 1 of 3 tests that the plaintiff must satisfy in order to recover damages:

  1. Foreseeability test (followed by most states). To recover damages, the plaintiff must prove that the defendant should have been able to reasonably foresee that their actions would cause the plaintiff emotional distress.
  2. Zone of danger test (followed by several states). To recover damages, the plaintiff must be in a specific “zone of danger” and at risk of physical harm.
  3. The physical impact test (followed by very few states). To recover damages, the defendant’s carelessness must have caused some kind of physical contact with the plaintiff.

To understand the 3 tests better, consider the following real case:

Real Life Example: R.J. v. Humana of Florida, Inc.
Doctors from Humana Hospital in Florida negligently misdiagnosed the plaintiff (known as “R.J.”) as HIV positive. For 19 months, R.J. lived with the pain of believing he had contracted a fatal virus.

Upon learning that he had not contracted HIV, R.J. sued Humana Hospital for NIED.

The court ruled against R.J.

In explaining its ruling, the court noted that Florida follows the “physical impact test,” which means the hospital’s carelessness must have caused some kind of physical contact with the plaintiff. In this specific case, it did not. However, if R.J. had established that the misdiagnosis led to invasive medical treatment or prescriptions of harmful medication, he would meet the requirements of the physical impact test and could recover damages.

Notably, R.J. would almost certainly have recovered damages if Florida had adopted the zone of danger test or the foreseeability test.

In addition to so-called “direct victim” NIED claims, most states allow “bystander” NIED claims. To prove NIED as a bystander, the plaintiff generally has to prove that:

  1. The plaintiff is closely related to the victim,
  2. The defendant’s conduct negligently caused injury or death to the victim,
  3. The plaintiff was present at the scene of the injury when it occurred and was aware that the victim was being injured, and
  4. As a result of the injury, the plaintiff reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness.

How do I prove emotional distress?

All courts agree that in order to recover damages for IIED or NIED, the plaintiff must prove that the emotional distress suffered was “serious and severe.”

A Texas appeals court defined serious and severe emotional distress as:

“A relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.”

The evidence required to prove that your emotional distress was “serious and severe” differs depending on your state.

Some states require proof of a physical manifestation of the distress (for example, a heart attack, hypertension, not being able to sleep, or inability to hold down food). Other states are more willing to accept that a plaintiff has suffered serious and severe emotional distress without proof of a physical manifestation.

Regardless of where you live, there are several things that may help you prove emotional distress:

  • Videos, photos, eyewitness statements, or other evidence of the act that caused your emotional distress
  • Testimony from friends and family about your behavior changes following the act
  • Documentation from doctors and therapists
  • Documentation of steps taken to alleviate your emotional distress (such as enrolling in meditative classes)
  • Proof of time missed from work due to emotional distress
Enjuris tip:To help support your IIED or NIED claim, use our expense worksheet to keep track of the medical expenses associated with your emotional distress, and our post-accident journal to document the impact of your emotional distress on your day-to-day life.

Do I need an attorney?

Proving emotional distress is much more difficult than proving a more visible injury (such as a broken bone). If someone caused you to suffer emotional distress, it’s a good idea to meet with a personal injury attorney to discuss your options. Most initial consultations are free.

Need assistance finding legal help? You can locate an attorney to discuss your case using our free online directory.


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