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Tort of Intentional Infliction of Emotional Distress

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales.


Intentional Infliction of Emotional Distress, (often abbreviated to IIED), is defined differently by various countries, and in the U.S. it even differs in varying jurisdictions. Still, as an overall definition, it consists of extreme or outrageous conduct, meant to cause intense emotional distress to another, which results in causing that distress.

Historically, it has proved difficult to differentiate casual, friendly teasing from deliberate verbal arrows or bullets, aimed at the most vulnerable area of the mind and soul of another.

As this tort began to be recognized, one American judge denoted it as a catch-all, utilized when no other claim encompassed an act for which a plaintiff deserves financial compensation from a given defendant.

Even today, though reports and testimonies of clinical and forensic psychologists have been accepted as evidence in major court cases, psychology continues to be viewed as a “soft science.” Hence, acceptance of the tort of IIED evolved by cautious degrees.

The cause of all human evils is the not being able to apply general principles to special cases.

— Epictetus

A Prank Which Proved Brutish

Eventually, intent, or in legal terms “scienter”, became the pivotal factor in establishing “intentional” infliction of emotional distress. In short, the defendant must have been shown to have known, at least to the level of a substantial certainty, his words would result in a detrimental or debilitating effect upon the plaintiff.

The 1897 case of Wilkinson v Downton began to forge a new law to encompass emotional harm, initially designated “nervous/mental shock”. While somewhat ambiguous, this term offered enough elasticity to include both immediate anguish, and /or future detrimental consequences.

Here, Mr. Wilkinson was the landlord of a public house at which Downton was a regular patron. Some rapport and trust must have developed between the Wilkinson couple and Downton, in that Downton felt free to speak privately with Mrs. Wilkinson when Mr. Wilkinson was away for a day at the races.

Downton induced Mrs. Wilkinson to believe her husband had been in an accident in which both his legs had been broken. Then, maintaining his role as concerned and consoling friend, Downton persuaded Mrs. Wilkinson to take a taxicab to the inn where her husband was ostensibly resting, suggesting she bring two pillows, in order to cushion the jolts likely to ensue during their homeward journey. In truth, this was a hoax.

Downton, later sued by the Wilkinson's, claimed to have believed, this ruse, after creating initial alarm, would soon become a source of hilarity between the three of them.

The Judicial Response to Horrific Humor

Whatever Downton’s alleged intentions, trusting his truth regarding serious injuries to her husband, caused Mrs. Wilkinson’s hair to turn white, while her psyche devolved to a near-suicidal collapse.

During the resulting lawsuit, the judicial opinion seemed to have wavered between the law of tort as it stood, and the ways in which the court sensed it should be expanded. The final opinion, delivered by Mr. Justice Wright, gave voice to this conflict. In order to resolve the question at hand, Justice Wright, set forth the criteria for mental shock:

The defendant’s conduct must have been outrageous and extreme; there must have been intent to cause psychological harm, and the victim must be shown to have suffered from harm directly resulting from the defendant’s words and/or conduct.”

Justice Wright found in favour of Mrs. Wilkinson awarding her £100 and the cost of travel fares generated by her efforts to reach and bring her husband back to their home.

Meagre as this victory might appear from our societal standpoint; later cases indicate Justice Wright’s decision left a definite imprint upon future findings, becoming a springboard, when future courts were forced to decide on claims of a similar nature.

Achilles Heel as an Implicit Defense

Mythology often contains nuggets of truth, which echo through millennia. Hence, the expression “Achilles’ Heel” stems from the Greek myth in which Achilles mother did all she could to immerse him in the River Styx, the waters of which were believed to confer immortality.

Still, she held onto one of his heels, in order to prevent his being carried off by the flow of the river. It became known the only means by which Achilles could be harmed was via his heel that had not been immersed in the magical waters.

An enemy, apprised of this fact, shot an arrow into that heel, thereby ending the life of Achilles. Thus, Achilles’ heel is analogous to intentional infliction of emotional distress. While everyone has vulnerabilities, a deliberate attack upon a profoundly sensitive area will, be dealt with as such by the judicial system.


Known Special Sensitivity

In order to prevail in a unique claim for IIED, a plaintiff must prove awareness of a special sensitivity, well-understood by the defendant, and either intended by that defendant to cause psychological harm, or with reckless disregard as to its hazards. . .

Hypothetically, Paul, a valued executive in a firm, suffers from a terror of close contact with flowers. (In fact, there is such a condition denoted “Anthophobia”)

On Valentine’s Day, Rose, a new receptionist who hopes to become romantically involved with Paul, places a bouquet of roses on his desk, accompanied by a handmade floral card, saying, “From your would-be Rose.”

Finding it there, Paul’s adverse reaction is such as to force him to undergo two months’ care in a psychiatric facility. Later, if Paul sues Rose for IIED, his claim is likely to fail on the basis of her having no reason to envision the misery of an action meant as a friendly, flirtatious gesture.

Conversely, if during her hiring process, it can be proved she understood the seriousness of Paul’s phobia, ideally via her signature on a highlighted part of her contract, she may be held responsible for the consequences of her action.

Wrongful Dismissal: An Early Case of an Employee’s Victory

In 1976, successful claims of unwarranted dismissal of an employee were embryonic.

Still, aware of the narrow chance of triumphing on this basis, Ms. Debra Agis, sued a Massachusetts franchise of Howard Johnson Restaurants and manager Roger Dionne for firing her, on no other basis than the initial of her last name being the first letter of the alphabet. Preposterous as this might sound, it occurred, due to growing, untraceable pilfering by restaurant waitresses.

Hence, during a meeting, called in order to halt such thefts, manager Roger Dionne, explained alphabetical order had been decided upon as the most expedient means of dismissing and replacing staff and overcoming this thievery. During this meeting, Ms. Agis, in tears, defended her right to continued employment.

While by no means disparaging her integrity, Mr. Dionne clearly viewed her dismissal as what would currently be denoted collateral damage. Apparently, he did not anticipate Ms. Agis’ armour of fortitude.

Are Physical Symptoms Essential?

Initially, Ms. Agis’ claim was treated as frivolous; due to Dionne’s genuine contention of no bodily harm having been caused by her dismissal. Still, determined to be heard, Ms. Agis persisted, bringing her cause of action before the Massachusetts Supreme Court.

This case is significant in that it raised the issue as to whether bodily harm is an essential component in cases of intentional or reckless infliction of emotional distress. Ms. Agis won the case, thus establishing a precedent for the acceptance of this degree of anguish, despite an absence of physical symptoms.

Irreverence Shown Towards an Evangelist?

In 1988, a claim for intentional infliction of emotional distress was brought by evangelist Jerry Falwell against Hustler Magazine. In factual terms, Jerry Falwell, the self-proclaimed leader of what he designated the moral majority, sued Hustler, an openly lurid magazine. Indeed, so controversial was the contents of Hustler Magazine as to be sold or delivered in a plastic bag, to protect the privacy of its buyers.

Conversely, so virulent was Reverend Falwell’s stand against abortion as to offer his followers badges or brooches depicting foetal feet. The number of Falwell’s adherents expanded, due to televised coverage of his ministry.

Perhaps due to this ghoulish campaign, Hustler felt justified in responding on the same level of lascivious horror. At any rate, Hustler featured a parody of an admission by Falwell of an inappropriate boyhood encounter with his mother in an outhouse. An enraged Falwell then sued Hustler for, among other claims, IIED.

Regarding Falwell’s claim, the court found, when dealing with public figures, penalizing for the intent to inflict emotional harm would subject political cartoonists and other satirists to immense damage awards.

From a historical standpoint, in times when few people could read, political discourse would have been rendered all but meaningless without such cartoons. Even now, one picture can evoke a far stronger visceral response than can be stirred by countless harangues and diatribes.

However, Hustler did not claim or imply that the parody was true and thus, Falwell’s claim for damages via the tort of IIED failed.


Snyder v Phelps: Limits on Freedom of Speech

The right to free speech guaranteed by the First Amendment of the U.S. Constitution includes nonverbal communication, within certain parameters. Still, these parameters are somewhat vague. Here, the openly gay Albert Snyder lost his son due to a non-combatant vehicular accident in Iraq. His corpse having been returned to his parents, they scheduled his funeral for March 10th 2006.

Its location having been publicized, defendant Phelps, hitherto unknown to the Snyder’s, travelled with several family and Westboro Baptist Church members in order to picket and protest in a location near-to but not at the church, waving signs displaying such warnings as, “God hates fags” and “You’re going to hell.”

In addition to other claims, Albert Snyder testified that Phelps and his followers conduct had worsened the effects of his diabetes and depression and resulted in emotional upheaval. Phelps/Church defended its actions by the fact that its demonstration was made in full compliance with local ordinances.

Having progressed through the circuitous mechanisms of the court system, The U.S. Supreme Court decided in Phelps’s favour. This decision was based on the fact that Albert Snyder was unable to see more than the tops of the placards paraded, the funeral service was not disrupted and Snyder was not coerced into hearing the offensive speech.

Thus, while not validating Phelps’ church’s actions, the U.S. Supreme Court refused to grant Albert Snyder’s claim for intentional infliction of emotional distress. Chief Justice John Roberts wrote the conclusive decision regarding this finding. Of the remaining 8 Supreme Court Justices, only Samuel Alito felt impelled to state an opinion opposed to that of his 8 colleagues.

Alito’s Advocacy of Snyder’s Rights

As is well-understood, the U.S. Supreme Court is intended to reflect the finest, most evolved understanding of rightful ideals. Justice Alito, in an opinion diverging from that of his peers, argued legal and humanitarian issues.

In this case, Alito exposed bigotry and prejudice, previously camouflaged by well-phrased linguistic diplomacy. The core of Justice Alito’s dissent was based upon his contention regarding Constitutional boundaries of freedom of speech.

This liberty, he stated, did not include verbal assault, especially aimed at a family bereaved and grieving, due to the death of someone cherished by all those attending his funeral. The Constitutional right of free speech, he averred, did not allow deliberate cruelty.

While the majority opinion was adhered to, Justice Alito’s dissent is sure to become a pivotal part of the legal landscape, shielding minorities of various kinds from hate speech or vile actions.

Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.

— Martin Luther King

A Kindred Tort to IIED: Negligent Infliction of Emotional Distress

This tort, often abbreviated to NIED, applicable only in the U.S., constitutes a valid claim in nearly all states and jurisdictions. Still, the temptation to exaggerate or feign symptoms and consequences in search of financial gain tends to engender a degree of skeptical scrutiny by judicial authority.

While wording varies, NIED consists of behaviour by a defendant which indicates reckless disregard as to the mental or physical harm to a third party.

The Impact Rule

Initially, physical symptoms directly shown to have originated from a valid claim brought by a plaintiff were required in order for a third party to an injury to succeed in bringing a claim for NIED. Gradually, the physical aspect of this rule has been re-evaluated. Currently, cases of major emotional anguish, viewed in terms of the mind/body connection, have reduced the requirement of physical consequences.

The Zone of Danger Rule

This rule, adjudicated on a case by case basis, involves proof of a claim for negligent infliction of emotional distress, consisting of both the physical and emotional closeness between plaintiff and victim of the injury. The decision of the court will depend upon the judicial view as to whether the defendant acted in a way expected of someone in the same or similar circumstances.

Acceptance of this Tort began in the 1968 California Supreme Court case of Dillon v Legg. The pivotal question was whether one or more bystanders had the right to financial compensation, due to the physical after-effects and lasting psychological scars due to their witnessing of a horrendous tragedy.

Here, the mother and sister of a young boy, waiting to greet their son and brother on his way home from school, found themselves forced to watch him being run over and killed by a reckless driver.

Initially, lower courts dismissed this cause of action on the ground that the plaintiffs’ suffering, while intense, did not reach the “Zone of Danger” required to establish the defendant’s liability. Later, in deciding the legitimacy of these allegations, the majority opinion of the California State Supreme Court, focused on three elements.

Firstly, the plaintiff/s must convince the court of their proximity to the death. Secondly, the impact must have been detrimental to the health of both the observers’ minds and bodies; thirdly, the closeness and depth of the relationship with the deceased person must be shown to have been intense enough to have brought about the alleged symptoms.

The Need to Establish Boundaries

Introduction of a new tort into the legal system can result in an onslaught of claims which, while similar to a successful one, falls beyond its parameters.

Overall, third parties are not deemed entitled to financial compensation, if they did not observe the actual injury taking place. Hence, in the 1989 case of Thing v La Chusa, the California Supreme Court did not support a mother’s claim for NIED.

Maria Thing, told by her daughter of her son’s having been hit by a car, raced to the area, where she became disconsolate upon seeing her son’s young body flooded in blood, in danger of dying. Although as a minor, he was not allowed to bring his own claim, later, as a young adult, Mr. Thing successfully sued the defendant, La Chusa, based upon his reckless driving. While Mr. Thing prevailed, the claim brought by his mother failed to do so.

While it might seem inconsistent for a Mother’s Claim to fail, when that of her son succeeded, in fact, the son was the actual victim of his injury.

According to the judicial opinion, the Vicissitudes of Human Life, horrific and ghastly as they often are, must be accepted as part of human existence. A valid claim for financial compensation, based on this level of negligence, must be predicated upon recklessness transcending the natural anguish flowing from those sorrows which are an integral part of our lives on this earth.

Transmitted Disease Misdiagnosed: A Marriage Demolished

1980 California case of Molien v Kaiser Foundation Hospitals.

Mrs. Valerie Molien, seeking a routine check-up, was diagnosed as having syphilis. Her physician advised Mrs. Molien to warn her husband of the need to have his blood tested, in order to ascertain he had not been infected.

Although the test indicated no hint of disease, accusations of infidelity destroyed the Moliens' marriage. Mrs. Moliens' system was barraged by needless antibiotics, and other medications, while her husband endured the pain of the thought of her betrayal.

The Force of Foreseeability

In every negligence claim, the foreseeability of the results of the defendant’s conduct are central to the judicial decision. While no-one in any aspect of life or profession can be expected to be blunder free, or to predict the impact of a given error, the reasonable person standards remains. This obliged the diagnosing physician in the above to consider the likely effect of presenting such a diagnosis, until every alternative avenue has been explored and ruled out.

© 2017 Colleen Swan


Colleen Swan (author) from County Durham on May 29, 2017:

Hi Larry, Good to hear from you; I always benefit by your encouraging comments.

Larry Rankin from Oklahoma on May 29, 2017:

Your analysis is always very thought provoking. Good to hear from you again.

Colleen Swan (author) from County Durham on May 28, 2017:

Hi Gilbert, great to hear from you again. As you live in California, as I did too for a while, you must be aware of its reputation for liberalism, viewed as radicalism by some. I believe there are people who exploit its flexibility. At the same time, it gives more conservative states a beacon to look to.

Colleen Swan (author) from County Durham on May 28, 2017:

Hi Paula, I am really happy you enjoyed my article. Tort law has always been my favorite aspect in that it shows a human side of interactions. A tort like this one can be a blessing for those who are being genuinely harassed. It can also bring out the greed in people who see a chance of financial gain reaped from tragedy.

Colleen Swan (author) from County Durham on May 28, 2017:

Hi Tom, thank you for your thorough reading and insights. I agree the political ambiance has a great deal to do with judicial choices. California has always been known as cutting edge in terms of legislation and law.

Gilbert Arevalo from Hacienda Heights, California on May 27, 2017:

Very good hub, Colleen. Evaluating cases according to judicial law always provides us with fascinating conflicts. Some judges or juries are more justified than others rendering their verdict. I like the way you illustrate the cases; they seem to unravel like a puzzle. There is some luck involved with some defendants; many cases can swing either way. Good to see your face again. I haven't seen you in awhile.

Suzie from Carson City on May 27, 2017:

Colleen... Thank you for this fascinating legal education. I find it so interesting to learn how courts arrive at their conclusions. The LAW is so distinct and refined that only a superior mind, supported by fully accurate & explicit study & practice of knowledge of all law, can be as close to fair & just as humanly possible.

It is also interesting to me how the average lay person can feel certain that a law suit will surely result in a particular favor, when ultimately it may be the opposite. IMO, this proves that how we may reason, determine and decide is not often how our judicial system works.

Very helpful explanations, Colleen.

Thomas Swan from New Zealand on May 27, 2017:

Excellent hub. I always wonder about the impartiality of the Supreme Court, given its appointment by various Presidents and the increasingly partisan nature of politics. I like the Martin Luther King quote. I think legislation can at least reflect morality, but it will only be effective if the basis of that morality is objective, cross-culturally aware, of the current era, and grounded in evolutionary psychology.