Emotional Distress in California Personal Injury Cases

Attorney Michael Rehm -- (800) 978-0754

Pain and suffering damages normally are only a portion of the overall damages, with “special” damages also generally being awarded. However, there are circumstances when pain and suffering can be awarded where there is no underlying physical injury. There are two separate causes of actions where emotional distress damages are available without a concurrent physical injury. They are referred to as:

1. Intentional Infliction of Emotional Distress; and
2. Negative Infliction of Emotional Distress.

These are two separate "torts," where the injury is emotional distress. A physical injury can occur after the fact, due to the emotional distress, but the emotional distress is the injury suffered. Once again, the jury is responsible for determining damages, and once again, the only measure they are provided with to determine the proper amount is what they believe is a reasonable amount to compensate for the emotional distress. Both torts have strict standards for a lawsuit to proceed.

Intentional Infliction of Emotional Distress requires:

1. Outrageous conduct by the defendant;
2. Of which the intent, or reckless disregard, was to cause emotional distress;
3. The person injured suffered severe or extreme emotional distress;
4. Which was caused by the defendant's outrageous conduct. 

The important thing to remember about Intentional Infliction of Emotional Distress is that it can be brought independently if there was no physical injury or as a separate harm when a physical injury did occur. But, you can only recover emotional distress damages once.

Negligent Infliction of Emotional Distress is like the tort of Intentional infliction of Emotional Distress, but with a couple of different aspects. First and foremost, it does not require that the defendant intended to cause emotional distress; merely that their negligent behavior caused it. There are two potential ways to recover for Negligent Infliction of Emotional Distress:

1. “Direct Victim” – the plaintiff suffered because of defendants conduct that was directed at the plaintiff;

     2. “Bystander Victim” – the plaintiff suffered because of defendants conduct towards another person 

              a. This requires some type of “special relationship,” like a parent/child, spouses, etc. 

              b. A parent witnessing defendant's outrageous conduct towards their child is an example. The child, if the elements of Intentional                          Infliction of Emotional Distress applied, would have a lawsuit for Intentional Infliction of Emotional Distress, and the Parent who                          observed the outrageous behavior, would have a lawsuit for Negligent Infliction of Emotional Distress.