Intentional Infliction of Emotional Distress

"Common law" is a body of legal principles, early laws and court decisions, mostly inherited from England. Common law defined and explained various traditional civil wrongs (called "torts") for which injured persons could sue to recover damages and other remedies. One such tort is "intentional infliction of emotional distress" (IIED), sometimes called the "tort of outrage."

The Tort of Outrage

Damages for emotional distress or suffering were recoverable long before courts recognized a separate claim for IIED. An individual may claim such damages as a result of other torts, such as assault, battery or defamation. Beginning in the 1930's, IIED was increasingly recognized and accepted as a separate claim, or "cause of action." One reason for this trend was recognition that IIED could provide recovery for some civil wrongs when other torts could not.

Common Proof Requirements for an IIED Claim

• Extreme or "outrageous" conduct by the defendant.
• The defendant intended to cause the "emotional distress" or acted with reckless disregard of the probability of causing it, (i.e., the defendant knew that the conduct would cause the distress).
• The claimant actually suffered extreme or "severe" emotional distress.
• The defendant's outrageous conduct was the actual and proximate (real) cause of the emotional distress.

Key Concept Definitions for IIED Claims

There really can be no precise meaning for many of the foregoing terms. As a result, the actual conduct giving rise to liability may vary from state to state and from case to case. Court cases and legal authorities have, however, provided some guidelines:

• "Outrageous" conduct has been explained as so extreme in degree as to exceed the "possible bounds of decency" and be regarded as atrocious and utterly intolerable in a civilized community. Bad manners or petty oppressions that are merely "insensitive, rude, offensive, harassing, insulting, or annoying" are insufficient. Mere insults, threats, annoyances, or other acts of unkindness will not ordinarily satisfy the "outrageousness" requirement. The acts must be absolutely intolerable, e.g., involuntary confinement and threats of physical harm under certain circumstances.
• "Severe emotional distress" has been defined as mental suffering or anguish, encompassing fright, horror, grief, humiliation, shock, or anger. It must be the type of distress that would be considered severe by a reasonable person or one with ordinary sensibilities, and such that no reasonable civilized person could endure it. Factors considered are the intensity and duration of the distress. Expert testimony may not be required to establish it; the outrageousness of the conduct may imply the distress.
• "Reckless disregard" equaling intent to cause emotional distress has been described as conduct that is willful and wanton; acting with deliberate disregard or indifference to the probability of causing the emotional distress. When the claimant was particularly susceptible to emotional distress and the defendant was aware of their vulnerability, it may be easier to establish that the conduct was outrageous and intentional.

Necessity of Bodily Harm or Injury

Initially, in many jurisdictions, recovery for IIED was not allowed without accompanying physical harm or injury. This is still the case in some jurisdictions, but in the majority, physical harm is no longer required for recovery of damages. The genesis of the requirement may have been the perceived danger that claimants would fake emotional distress injury, but courts have made recovery sufficiently difficult, and this fear has largely subsided.

Privileges

Just because conduct causes emotional distress, and may arguably be outrageous, does not mean that the claimant can recover. There are circumstances when the defendants' conduct may be considered privileged, even when it causes emotional distress. Generally the privilege arises out of the defendant exercising a legal right. Examples include:

• An employer's termination of an "at-will" employee (e.g., escorting an employee out of the building after termination, in front of co-workers, may cause emotional distress, but is generally not actionable). Reprimanding, disciplining, and evaluating an employee are usually not actionable as IIED.
• An insurance company's proper enforcement of policy requirements for proof of entitlement to coverage, etc.
• A landlord's proper eviction of a tenant.
• Arguably defamatory remarks in court pleadings during a lawsuit.

Use of IIED Tort Claim

Recovery under IIED has been allowed in employment cases (in connection with sexual harassment, where conduct was especially outrageous), medical malpractice (misdiagnosis of AIDS), and divorce (husbands whose wives have lied to them about the paternity of children have been allowed to recover). The viability and requirements for proof to recover on IIED claims vary substantially.

In a recent case in Texas, an employee claimed she had been sexually harassed and was later laid off in retaliation of her complaints. The trial court and court of appeal ruled in the employee's favor on an IIED claim. The employer argued that an IIED claim should be a "gap filler," used only to remedy wrongs not otherwise remedied, which did not fit this particular case since sexual harassment is prohibited by both state and federal statutes. The employer further argued that the employee failed to meet the requirement of "outrageous" conduct required to prove an IIED claim. The Texas Supreme Court agreed and reversed the court of appeals on both grounds, defeating the employee's IIED claim.