Emotional Distress

To sustain a claim for emotional distress, whether negligently or intentionally inflicted, you must show that the defendant’s conduct caused you injury in the form of mental, emotional, upset or turmoil. Emotional distress itself can be manifested in a variety of ways:

  • Shock;
  • Sadness;
  • Anxiety; and/or
  • Depression.

If your claim of emotional distress is to be successful, however, you must do more than allege mere upset, dismay, humiliation, grief and anger.

Negligent Infliction of Emotional Distress

To prove a case of negligent infliction of emotional distress, the plaintiff must prove the following elements:

  • The defendant was negligent;
  • You suffered emotional distress;
  • Your emotional distress was caused by the defendant’s negligence.
  • Your emotional distress is evidenced by physical harm; and
  • A reasonable person would have suffered emotional distress under the circumstances of your case.

To prevail on a claim for negligent infliction of emotional distress, you must show that your emotional distress precipitated or caused some physical harm or symptom. In cases alleging intentional infliction of emotional distress, you are not required to make this showing.

A large proportion of the negligent infliction of emotional distress cases concern so-called bystander liability, meaning claims for emotional distress occasioned by negligent injury to a third person.

Massachusetts courts have accepted the viability of claims of this type but have done so only after imposing strict relational, temporal, and spatial limits on the scope of liability for emotional harm. If you are a bystander or third-party witnessing personal injury to a third person, you can only recover for emotional distress if you:

  • Are closely related to the third person directly injured by a defendant’s tortious conduct;
  • Suffer emotional injuries as the result of witnessing the accident or coming upon the third person; and
  • See or come upon the injured third person soon after the accident.

Most claims of this type are brought by family members who witness or come upon accidents in which other family members, particularly children, are injured.

In the case Dziokonski v. Babineau, 375 Mass. 555 (1978), the Supreme Judicial Court allowed a claim for negligent infliction of emotional distress where an injured child’s mother died in route to the hospital after the mother witnessed her daughter injured and lying on the ground shortly after an accident.

In the case Rodriguez v. Cambridge Housing Authority, 443 Mass. 697 (2005), a child was permitted to recover for distress brought on by his witnessing a violent attack on his bound-and-gagged mother.

In the case Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980), the court allowed claims brought by the wife and children of an accident victim where the family members observed the victim shortly after the accident occurred.

While the previous cases demonstrate when you can recover for your emotional injuries as a bystander or witness to another’s injuries, the Supreme Judicial Court has limited bystander recovery for negligently inflicted emotional distress to situations in which the victim and the third person enjoy a close, familial or other relationship. The courts have declined to allow recovery if you are a stranger to the victim.

To support your claim of emotional distress based on negligent injury to another, you must also show that you came upon the accident or witnessed the injury to the third person. This will satisfy the required showing of special proximity, or that you were physically close to the injury of the third person.

To prove emotional distress, you must also show that you came on the accident or witnessed the injury immediately, or at least promptly. A failure to show that the shock of witnessing the accident or injury follows closely on the heels of the injury is fatal to your bystander claim.

If you prevail on claims of negligent infliction of emotional distress, you may recover the types of damages common to all tort claims. This includes compensation for fright, anger, depression, and physical harm attributable to the defendant’s actions, as well as for medical expenses, diminution of earning capacity, lost wages, pain and suffering, and loss of consortium.

In cases of negligently inflicted emotional distress, you have an additional burden of showing physical harm and causation. Be aware, in cases alleging emotional distress based on injury to a third person, the defendant will attempt to show you and the third party lack the required relationship to permit recovery and/or you did not witness the injury or come upon the third person quickly enough following the injury.

Intentional Infliction of Emotional Distress

To prevail on a claim for intentional or reckless infliction of emotional distress, you must show the following key evidence and phrasing as outlined in the court case Agis v. Howard Johnson Co., 371 Mass. 140 (1976):

  • The defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his or her conduct;
  • The defendant’s conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”;
  • The actions of the defendant were the cause of your distress; and
  • The emotional distress sustained by you was “severe” and of a nature “that no reasonable [person] could be expected to endure it.”

Where you show that the defendant acted with an intent to cause you emotional distress or with reckless disregard for the likelihood that his or her conduct will cause such distress, you are not required to demonstrate any resulting physical harm.

It is important to remember that absent outrageous conduct, the defendant is not liable for emotional distress, even if he or she acted with an intent which is tortious or even criminal, intended to inflict emotional distress, or even if his or her conduct has been characterized by malice or a degree of aggravation which would entitle you to punitive damages for another tort.

In the context of emotional distress claims, “extreme and outrageous” conduct must be exactly that and nothing less. However, even if the offending conduct was outrageous from your perspective, it will likely be subject to stringent scrutiny by the court.

The following is a selection of cases in which the courts found the defendant did engage in extreme and outrageous behavior:

  • Publication both online and in print of the plaintiff’s photographs alongside allegations that the plaintiff was secretly photographing women on campus. Butcher v. Univ. of Mass., 94 Mass. App. Ct. 33, 42-43 (2018).
  • A landlord who rented out an apartment that was “essentially uninhabitable” because of the property’s general disrepair, an infestation of vermin, unkept promises to make repairs, the landlord’s disregard for requests to repair by sending drunk repairmen, the landlord moving to evict the tenant in retaliation for the tenant’s efforts to assert her rights, the landlord’s disregarded of repeated court orders to repair, the landlord’s sexual harassment of the tenant, the landlord’s threats to interfere with the tenant’s welfare status, and the landlord’s threats to influence unfairly the outcome of court proceedings. Haddad v. Gonzalez, 410 Mass. 855, 870-71 (1991).
  • The court found ample evidence of outrageous conduct when a landlord failed to take permanent action to prevent flooding of a tenant’s apartment with water and sewage. Although the landlord did send work crews to pump out the water after each flood, the court found that the landlord displayed, over a long and repeated period of time, such a pattern of indifference that the landlord’s conduct was outrageous beyond all possible bounds of decency. Simon v. Solomon, 385 Mass. 91, 97 (1982).
  • A supervisor’s threat to an employee that, if the employee filed for disability benefits, the employee would not be allowed to return to his job after disability ended, was considered outrageous. At the time of the threat, the supervisor was aware that the employee had terminal cancer and was unable to continue working. Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212 (1979).
  • The court upheld a claim for intentional infliction of emotional distress against a private investigator who was investigating a female plaintiff’s brother-in-law. The distressing conduct of the investigator included repeatedly calling the plaintiff’s home, often late at night, seeking information about the plaintiff’s brother-in-law, continued calling in the face of the plaintiff’s explicit request that he not call again, coming to the plaintiff’s house uninvited, and, while present at the house, the investigator told the plaintiff that he was a bank robber and that he had been imprisoned for rape. The court held that repeated harassment, as described in the previous sentence, may compound the outrageousness of the incidents and trigger liability for the intentional infliction of emotional distress which, when taken individually, might not be sufficiently extreme to warrant liability. Boyle v. Wenk, 378 Mass. 592 (1979).
  • An employer was held liable to an employee for the reckless infliction of emotional distress for arbitrarily firing the employee from a waitressing job as part of a threat to fire all employees in alphabetical order until the employer was given information concerning alleged thefts in the workplace. Agis v. Howard Johnson Co., 371 Mass. 140 (1976).
  • A former girlfriend of the plaintiff was found liable for the intentional infliction of emotional distress after her false report that the plaintiff had assaulted her and resulted in the plaintiff’s incarceration for four days. The plaintiff had never been in jail before, and his concerns for himself were compounded by worry about his children, for whom he was the sole caretaker. Harris v. Harvin, No. 012292, 2005 WL 2461876 (Mass. Super. Ct. Aug. 4, 2005) (MacLeod-Mancuso, J.).

In cases of emotional distress, as in other types of tort claims, a defendant takes the plaintiff as he or she finds him or her. When there is evidence of intentional or reckless infliction of emotional distress, courts have acknowledged the validity of the “eggshell psyche”—that is, if the plaintiff can demonstrate that he or she is particularly susceptible to distress under the circumstances of the case presented, even individual acts that would not ordinarily rise to the level of outrageousness may be grounds for recovery.

If you believe you were the victim of emotional injury or distress, negligent, reckless, intentional, or otherwise, the experienced personal injury attorneys at Advocates Legal Group, LLP can help you determine the value of your claim and can bring the appropriate action for recovery. We will help you prepare your case in a way that demonstrates the other side is responsible for injuries and other losses. We can also help you understand the strengths and weaknesses of your case and build a strategy to ensure the most successful outcome possible. Although the recovery process can be stressful, you do not need to go at it alone. We will be on your side every step of the way to advise you of your rights, options, and navigate through you through the process. Call us now at (508) 796-5737, or email us at info@advocateslegalgroup.com, for a free case evaluation.

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