Yes, you can.
We now know that emotional abuse, constant criticism and chronic neglect have devastating consequences, effects that can be just as horrible as any physical assault. We know that these effects can be psychological, cognitive and physical, literally altering the structure and functioning of a survivor’s brain. But courts are generally slow to adapt, and this deficiency has been nowhere more apparent than for victims of severe emotional abuse.
America’s civil laws have always recognized that physical abuse is unacceptable, and thus just cause for legal action, but psychological trauma on its own has only recently been accepted as a viable reason to file suit.
Intentional Infliction Of Emotional Distress
Thankfully, every state now recognizes a legal theory known as “intentional infliction of emotional distress,” which should validate most cases in which a Plaintiff suffered severe mental trauma at the hands of an abuser, one who need not have ever used their fists.
In order to win a case, survivors will have to prove:
- the person they’re suing acted intentionally or recklessly
- that person’s actions were “extreme and outrageous”
- those actions caused harm
- that harm can be considered “severe”
Be aware that each state will have its own wording and requirements for this type of lawsuit, and further, that state courts will interpret the laws differently. Despite those nuances, each state is likely to recognize the basic 4-part outline we presented above. We’ll cover each of those requirements in more detail below, beginning with a concept central to the intentional infliction of emotional distress: extreme and outrageous conduct.
“Extreme & Outrageous”: When Is An Insult Intolerable?
In order to be held liable for severe emotional distress, the Defendant’s actions must have been “extreme and outrageous.” Most verbal slights won’t make the grade; the offensive conduct alleged must be truly reprehensible.
Who decides if emotional abuse has risen to that level? Courts usually take a reasonable community, similar to your own, and ask: “what actions would be unacceptable to these people?” Then they go further (that’s the “extreme” in “extreme and outrageous”) and ask “what is so far beyond the pale of decency that it incites ethical outrage?” That’s the point of a jury, to draw those dividing lines, and whether or not verbal abuse counts as “extreme and outrageous” will ultimately come down to the court’s opinion and that of a jury. Obviously, not all harmful actions, even those intended to offend, will meet that standard.
Sometimes We Have The Right To Offend
Courts presume that, in order to live in any society, people have to develop relatively “thick skins.” That’s a fundamental aspect of our First Amendment right to freedom of speech. Being free to criticize the opinions and beliefs of others means that other people will often be offended. Needless to say, that right is well worth protecting. Some ideas deserve criticism; some beliefs are dangerous.
California’s civil code recognizes this nuance (somewhat obliquely) in its definition of “outrageous conduct“: “conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community.” The implication is that there are some indignities reasonable people can expect to endure, even in an ideally “civilized” community.
Similarly, people sometimes have a right to do things that cause emotional distress. Imagine a worker who desperately needs their job. The only problem? They haven’t been showing up for work. Getting fired will cause them intense emotional distress, but their employer has every right to fire them. That’s just how employment works in America.
Prior Knowledge Matters
Some offensive actions can rise to the level of “extreme and outrageous,” even though they wouldn’t be considered extreme or outrageous in all circumstances.
Let’s say Claire has a severe phobia of snakes. She’s been seeing a therapist to help with her fears, but is still far from comfortable being anywhere near the things. George is perfectly aware of that fact; he’s known Claire for years. But one day, he brings a python to Claire’s house and intentionally taunts her with this terrifying, albeit non-venomous, serpent. Afterwards, Claire is traumatized, suffering a major setback in her therapy.
In court, that could rise to the level of “extreme and outrageous” conduct, since Claire has a psychological horror of snakes and George intentionally exposed her to the object of her fear.
Intention & Recklessness
Another requirement in these cases is that the Defendant intended to inflict emotional trauma, or acted with a total disregard for the fact that emotional trauma was a likely result of their actions.
Most civil lawsuits use the standard of “negligence,” the breach of a specific duty. Negligent acts don’t have to be intentional; a driver who’s texting at the time of an accident probably doesn’t mean to hurt other people, but they can still be held liable for physical damages because everyone on the road has a duty to drive with safety in mind. Claims for emotional distress, on the other hand, use one of two standards: intent or recklessness.
People are reckless when they knew, or should have known, that harm would be a likely result of their actions. Intent simply means that they wanted to cause harm.
What Does “Severe” Emotional Distress Look Like?
“Intentional infliction of emotional distress” is a fairly recent legal theory, and courts are still stumbling their way toward a consistent definition of psychological trauma. Undesirable mental or emotional states usually fit the bill, like chronic feelings of guilt, shame or terror. Whether that trauma is “severe,” on the other hand, is a question only juries can decide.
Since many forms of psychological trauma also result in physical manifestations, survivors may be able to secure compensation for those damages as well.
Proving You Were Harmed
Personal injury lawsuits are usually filed in relation to physical injuries, but how does our nation’s legal system consider forms of harm that can’t always be seen with the naked eye? By making them visible.
Even people with obvious physical injuries need to show additional proof that they’ve lost out in a material way, usually by providing the court with hospital and therapy bills. Survivors of verbal abuse will have to do the same thing, using records from trauma therapy and bills for pharmaceuticals to demonstrate that they suffered extreme mental distress.
Expert testimony will also be crucial. It’s likely that psychiatrists, psychologists and counselors will have to step forward. On the stand, or in depositions, your healthcare professionals can testify to the extent of your psychological trauma, and even more important, the causal link between that trauma and the abuser’s actions. Friends who have noticed a change in your behavior can also be helpful.
Physical injuries can also be used to prove the effects of verbal abuse, like chronic headaches, rashes and ulcers, which are often symptoms of severe stress or emotional disturbance.
Damage At A Distance
“Intentional infliction of emotional distress” is a legal theory that every state recognizes as appropriate and justified. Now, we’ll turn to a more contentious issue: “negligent infliction of emotional distress.”
Most states now allow people to sue for emotional trauma suffered from the threat of physical injury. Imagine being in a room with a “vicious” dog, but not actually being touched by it. The fear of being bitten might be so severe that you develop a lifelong phobia of dogs. That could be a viable cause of action. In some cases, people can even sue over emotional trauma caused by negligence that physically affected other people, but not themselves. Here’s an example:
Craig is struck by a speeding driver, suffering severe injuries. His wife Angela, who was following close behind in a different car, arrives at the scene only moments later. Angela is horrified and helpless. She can’t sleep and doesn’t feel safe anywhere, oppressed by an unjustified, but crippling, sense of guilt for having arrived too late to somehow help her husband.
Conceivably, Angela could file a lawsuit for negligent infliction of emotional distress against the speeding driver. How she would fare in court is another question.
Impact & Danger: How Close Is Close Enough?
Some states (a dwindling few, actually) use what’s known as the “impact rule” to judge whether people can recover compensation for emotional distress inflicted “at a distance.”
Essentially, the “impact rule” tries to negate that distance, by requiring that the Defendant’s negligent actions must have caused some kind of contact or impact to the Plaintiff. Courts have ruled that a loose pebble striking a Plaintiff is sufficient to satisfy the impact rule.
More common is the “zone of danger” rule, in which the Plaintiff must have been close enough to the negligent act to be at risk of immediate harm. That limits most negligent infliction of emotional distress claims to ones where the dominant emotional injury is fear of immediate harm.
Most states use a “foreseeability” standard, a far lower bar than impact or danger. Basically, all that’s required is that a Defendant should have been able to predict that their actions could result in severe, negative emotional consequences. That’s not to say winning an emotional distress lawsuit in those states will be easy. Plaintiffs usually need to show that their psychological trauma has resulted in physical symptoms, too.