Can You Sue for Emotional Distress?


Jan Reburiano

Physical damages like destroyed property, bodily injury, even a damaged retina can be filed in a personal injury claim. Economic damages like these are hard to overlook, but people forget they can sue for emotional claims as well. One example of these claims is emotional distress, a type of loss that can even overshadow physical injury.

Emotional distress is hard to measure due to how personal these damages are to the plaintiff. Despite its subjectivity, emotional distress claims have won significant compensation in court. Some examples like Shoen v. Amerco won damages based on emotional distress alone, meaning the plaintiff had no physical injuries.

You can sue for emotional distress if you have tangible proof that someone’s outrageous behavior intentionally caused emotional damage. There are situations where you can sue someone if they negligently caused you emotional distress as well. The process of proving emotional distress varies from state to state.

The only way subjective claims like emotional distress can survive in court is through legal guidance by a personal injury attorney. You need a lawyer who can properly present your case and convince others on the severity of your emotional distress. Without a lawyer on your side, you may say or do something that puts your claim at risk.

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What is Emotional Distress?

Emotional distress is a legal term to describe mental suffering directly or indirectly caused by another person’s actions. Generally emotional distress is a type of damage that goes alongside another personal injury claim. There are instances, however, where you may sue for emotional distress as its own claim, like sexual abuse and defamation.

Below are symptoms commonly found among those suffering from emotional distress:

  • Depression
  • Anxiety
  • Intense shame or guilt
  • Humiliation
  • Unstable weight gain or loss
  • Loss of consortium
  • Uncontrollable crying
  • Sexual difficulties

Emotional distress falls under pain and suffering, a type of non-economic damage determined by each state’s unique laws.

To prevent frivolous cases from going to court, emotional distress claims typically require you to prove physical harm. Some cases are so strong and have enough proof where you can file an emotional distress claim without physical harm. Cases of nursing home abuse or employment discrimination may fall under this category.

Types of Emotional Distress Claims

There are two types of emotional distress claims that you can sue for: Intentional infliction and negligent infliction of emotional distress.

Intentional Infliction

An intentional infliction of emotional distress is when someone deliberately engages in outrageous behavior to cause severe mental harm. States have different definitions regarding “outrageous behavior” and “severe mental harm.” However, there are three parts to proving an intentional infliction of emotional distress claim:

  • Someone directs extreme or outrageous behavior towards you
  • They acted recklessly or intended to cause you mental harm
  • The mental anguish you suffered as a result was severe

Outrageous Behavior

The extreme behavior must be malicious in nature and far beyond the scope of human decency to prove emotional distress. Merely making fun of someone will not prove emotional distress to a jury. But sustained death threats over multiple years may qualify, for example.

Proving Intent

Proving intent may be difficult if the defendant does not admit to the severity of their behavior. You need to provide proof to a jury that malicious intent drove your assailant’s actions, even if they don’t admit it. A reasonable person has to infer that there was intent if you showed them the evidence for your emotional distress claim.

Severity of Emotional Distress

The severity of your emotional distress has to reach beyond just hurt feelings. States have different parameters to measure pain and suffering in personal injury lawsuits. However, your emotional distress has to reach the point where no reasonable person can endure your suffering.

Courts look at several factors to measure emotional distress:

  • The intensity of your distress
  • How long you experienced it 
  • The actions that caused mental anguish
  • Physical symptoms as a result of emotional distress

Besides physical symptoms, all of these classifications are subjective and reviewable by the court and jury. The more concrete evidence that proves these factors, the more likely the court will award you damages.

Negligent Infliction

When someone’s unintentional egregious actions cause severe pain and suffering, you may file a negligent infliction of emotional distress claim. There are three parts to this claim you need to prove to the jury:

  • You were owed a duty of care in that situation
  • The defendant breached that duty
  • That breach in duty caused you emotional distress

Below are additional requirements states may assign to prove a negligent infliction claim:

Zone of Danger

Some states require you to be in the vicinity of physical danger to prove a negligent emotional distress claim. You may not be hurt directly, but you were close to a source of danger that could have hurt you. You may have witnessed a loved one get hurt because of that danger.

This requirement is referred to as the “zone of danger” or “bystander rule” by some states.

One case that tested this zone of danger rule was Clifton v. McCammack. Ray Clifton sued Ruby McCammack for negligent infliction of emotional distress after seeing a fatal car crash report on the news involving the death of his son, Darryl Clifton.

The Supreme Court confirmed their close relationship. But because Ray Clifton was not present at the scene of the crash, the court did not award him emotional distress damages.


Filing a negligent infliction of emotional distress claim may require you to prove foreseeability during the incident. You have to prove that your severe emotional distress was foreseeable, but the defendant chose to act recklessly without cause.

An example of foreseeability would be if a drunk driver swerved into a sidewalk and ran over a child, but not the mother. The parent can file a negligent infliction of emotional distress claim because it is foreseeable that swerving onto a sidewalk would cause severe mental anguish.


Some states may have you prove the impact of your emotional distress through physical trauma. Physical trauma can show up in different ways, like:

  • Rapid weight gain
  • Intense rashes
  • Insomnia

How to Prove an Emotional Distress Claim

Due to the subjective nature of emotional distress, proving its severity to a jury requires concrete evidence. Examples of evidence may include:

  • Medical documents
  • Physical injuries
  • Eyewitnesses
  • Documentation of the accident

Proof involving the examples above will skyrocket your chances of compensation. Courts are unlikely to award damages without concrete evidence.

Gather Medical Records

Collect as many medical records as possible that describe the treatment you sought due to your emotional distress. The older the documentation, the better, since it will paint a broader picture of your mental anguish over a period of time.

Documents from your therapist, psychiatrist, or your personal physician are examples of medical records you can use for your claim.

Document Your Emotional Distress

Write down as many facts as possible about your emotional distress. This includes the source of your emotional distress, how it affects your daily life, and physical injuries resulting from the emotional distress.

The more documentation about the accident, the more facts are covered in your claim. Physical injuries are especially strong in emotional distress claims because it gives the jury a tangible reason to side with your claim.

Speak to an Attorney

When everything you do can count against you in court, you need a personal injury attorney to sort through your case successfully. A competent lawyer can dramatically raise your chances of success while maximizing your settlement.

Most personal injury attorneys work under contingency fees. This means you don’t have to pay for their services out-of-pocket. They only take a fraction of your settlement for compensation, and you only pay if you win.

Who Can You Sue for Emotional Distress?

Emotional distress claims can apply to any situation, even those where you were not physically hurt by an accident. As long as the scenario was so extreme and outrageous that it warrants a claim to emotional distress. Below are examples of entities you can sue for emotional distress according to federal and state law.

Your Employer

Title VII of the Civil Rights Act allows you to sue your employer if they infringe on your labor rights. That includes discrimination claims or a hostile work environment. Even suing for privacy violations when working from home may qualify for an emotional distress claim, depending on the situation.

Despite how uncomfortable it is, your employer has to know about your situation before proceeding with your claim. They have a responsibility under federal and state law to resolve any infraction on your civil rights. They also must keep your complaint confidential and protect you from retaliation claims during their investigation.

If you feel they are infringing your rights and causing you emotional distress as a result, you may qualify for an emotional distress lawsuit.

Doctors and Hospitals

If any medical entity mishandles your health and causes you emotional distress as a result, you may sue them for medical malpractice. This includes doctors, nurses, any medical staff, or the whole hospital if liable.

The experience of a physician ruining your health may be emotionally traumatic. Cases like birth injury may satisfy the bystander rule as you are in the room when medical malpractice takes place. If their negligence can be considered outrageous behavior, you may have a negligent infliction of emotional distress claim.

Government Agencies

Suing government entities is more difficult due to sovereign immunity granting them protection from lawsuits in most circumstances. The Federal Tort Claims Act, however, allows you to sue the government if:

  • You or your property was damaged by a federal government employee
  • The employee was acting under their official role when they hurt you
  • An employee acted negligently or wrongfully
  • The employee’s negligent actions caused your injury

Suing public figures like the president under these conditions is more difficult due to their protections while in office. You cannot sue public figures because their decisions cause you emotional distress. Government entities like schools or parks are held more accountable to the Federal Tort Claims Act, and can be sued in a court of law.

If you experienced outrageous behavior in government facilities that caused you emotional distress, you may have a claim. To confirm your claim’s validity under a court of law, speak to a personal injury attorney. They are equipped to handle emotional distress cases and can tell when a case has a chance for compensation.

Damage Caps on Emotional Distress

Some states establish damage caps to prevent people from filing frivolous lawsuits. These states are:

  • Alaska
  • Colorado
  • Hawaii
  • Idaho
  • Kansas
  • Maryland
  • Mississippi
  • Ohio
  • Oklahoma
  • Oregon
  • Tennessee

These caps range from $250,000 to $750,000, but it depends on the state. Make sure to research your state’s laws on how much you can receive in non-economic damages before filing your claim.

Why You Need an Emotional Distress Attorney

If you’re wondering whether you can sue for emotional distress, it largely depends on your evidence and how you present it. Your evidence may be strong, but if you present it poorly, you can get a lower settlement, if any at all.

Emotional distress is largely subjective, so presenting your evidence is crucial. You need a personal injury attorney to represent you in an emotional distress claim to maximize success.

There are common myths about hiring personal injury attorneys, that you have unlimited time to file a claim and that they’re expensive.

Personal injury cases have a deadline to file a claim called the statute of limitations. If you do not file your claim before the statute of limitations expires, you won’t be able to file a claim for your case.

Personal injury lawyers often work on contingency fees, meaning their services are free until you get your settlement in the mail. Oftentimes the settlement money earned from a lawyer is worth the expense. They help you get a bigger settlement while making the process easier and faster.

If you need to connect with a lawyer and you don’t know where to start, call LegalASAP. We’re connected with 500+ law firms across the United States, so you won’t have trouble finding a lawyer local to your area.

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Jan Reburiano is a content writer and SEO specialist for law firms focusing on personal injury, disability, employment law, among other practices. He has written and edited numerous articles and created commercial spots for broadcasters that you can find in his LinkedIn. Jan currently lives in Los Angeles, California while writing for clients from around the United States.