Intentional Infliction of Emotional Distress

The Restatement (2nd) of Torts, section 46, states:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

So, IIED (Intentional Infliction of Emotional Distress) has four parts:

  1. outrageous conduct by the defendant,
  2. the intention of causing, or reckless disregard of the probability of causing, emotional distress,
  3. actual suffering of severe or extreme emotional distress, and
  4. actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

The law will not recognize a mere insult or emotional injury without some "plus factor": hence, the outrageous conduct requirement. Importantly, outrageous conduct will be found where the defendant knew the plaintiff to be particularly disposed to harm by the conduct; in other words, the defendant can't plead a defense of having performed similar conduct in front of others with no damage if he knew the conduct would be received differently.

The distress suffered must be what a "reasonable person" would undergo given the circumstances, though there is an exception for "eggshell plaintiffs." Furthermore, as the name implies, bodily harm is not a requirement - mental damage alone may be sufficient. Where there is an absence of physical damage, the courts will often look more closely at the outrageous conduct itself, and an action will like where the conduct was sufficient to presume emotional harm.

As far as intent goes, willful, wanton or reckless behavior, in deliberate disregard of potential distress, will fulfill the requirement. With the exception of close family members, as evidenced in section (2)(a) above, or those who witness the event (2)(b), transferred intent will usually not be applied. But, in such cases where a third party is damaged, the court may look to familiar foreseeability analyses and the extent of the willful, wanton, or reckless conduct.


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