Intentional infliction of emotional distress: the elements, and how negligent infliction differs

Intentional infliction of emotional distress (often shortened to IIED) is a tort that, in the words of Cornell’s Wex encyclopedia, occurs when someone “intentionally or recklessly causes another to suffer severe emotional distress” (Wex: IIED). Broadly, a plaintiff must show four things: outrageous conduct, intent or reckless disregard, severe emotional distress, and causation. Negligent infliction (NIED) is different: it rests on carelessness, and states disagree about when it is allowed at all.

The four elements, using California as the example

In California, the official civil jury instruction for IIED, CACI No. 1600, lists what the plaintiff must prove (CACI No. 1600):

• Outrageous conduct. The defendant’s conduct “was outrageous.”
• Intent or reckless disregard. The defendant either intended to cause emotional distress, or acted with reckless disregard of the probability that the plaintiff would suffer it, knowing the plaintiff was present when the conduct occurred.
• Severe distress. The plaintiff suffered severe emotional distress.
• Causation. The defendant’s conduct was “a substantial factor” in causing that distress.

The plaintiff must prove all four. Wex lists a similar set of elements as a general, educational summary, and notes that jurisdictions “will differ in their definitions and applications” of the tort even though they generally follow the same requirements. Some states, Wex says, let a person close to the target of the conduct bring a claim too. Check the rule in your own state.

What “outrageous” means, and what does not qualify

The outrageous-conduct element sets a very high bar. California’s CACI No. 1602 defines outrageous conduct as conduct “so extreme that it goes beyond all possible bounds of decency,” which a reasonable person “would regard” as “intolerable in a civilized community” (CACI No. 1602).

The same instruction says what falls short: “trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.” The case law collected with the instruction quotes the Restatement (Second) of Torts, section 46, comment d, for the point that liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Rude, cruel or offensive behavior is often not enough.

CACI No. 1602 lets a California jury weigh factors such as whether the defendant:

• abused a position of authority or a relationship that gave real or apparent power over the plaintiff’s interests;
• knew the plaintiff was particularly vulnerable to emotional distress; or
• knew the conduct would likely cause harm through mental distress.

Speech raises its own limits. Wex explains that courts typically will not impose IIED liability based only on someone speaking negatively about another person, especially a public figure, and that courts balance these claims against First Amendment protection for free speech.

What “severe” emotional distress means

Emotional distress covers a wide range of feelings. California’s CACI No. 1604 lists “suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame” (CACI No. 1604). But for IIED the distress must be severe, which the instruction defines this way: it “is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it.”

In California, a plaintiff does not have to prove a physical injury to recover for severe emotional distress, according to the same instruction. Ordinary upset, even real and painful upset, usually does not meet the standard.

Negligent infliction: how it differs

Negligent infliction of emotional distress is emotional distress “caused by negligent action,” according to Wex, which adds that states “differ greatly” on when they allow it (Wex: NIED). Wex describes three broad groups: most states allow the claim when the distress was reasonably foreseeable; some limit it to people in the “zone of danger” who nearly suffered physical harm; and a few require some physical injury to the plaintiff.

In California, NIED is not an independent tort. The directions for CACI No. 1620 state that the doctrine “is not a separate tort or cause of action”; it allows certain people to recover emotional distress damages on a negligence claim even though they were not otherwise injured (CACI No. 1620). California sorts these claims into two kinds:

• Direct victim (CACI No. 1620). The claim rests on a duty the defendant owed directly to the plaintiff. The plaintiff must prove negligence, serious emotional distress, and that the negligence was a substantial factor in causing it. The directions note that the California Supreme Court has allowed direct-victim recovery in only three types of situations, including the negligent breach of a duty arising out of a preexisting relationship.
• Bystander (CACI No. 1621). The plaintiff saw another person injured or killed. The plaintiff must prove the defendant negligently caused the injury or death, was present at the scene when it happened, was then aware the event was causing the injury, suffered serious emotional distress, and that the conduct was a substantial factor. The directions add that whether the plaintiff’s relationship with the victim was close enough is decided by the judge as a question of law.

For both California NIED instructions, “serious” distress “exists if an ordinary, reasonable person would be unable to cope with it.” The core contrast with IIED is the defendant’s state of mind: IIED needs intent or recklessness plus outrageous conduct, while NIED rests on negligence and the limits each state places on who can recover.

Why these claims are hard to win

Emotional distress claims face several hurdles. First, the standards are demanding by design. In the case law collected with CACI No. 1604, the California Supreme Court says that on severe distress it “has set a high bar.”

Second, a judge screens the claim before a jury weighs it. The materials with CACI No. 1600 say the trial court first decides whether conduct may reasonably be regarded as extreme and outrageous, and the materials with CACI No. 1602 quote a California appellate court noting that many IIED cases have been dismissed at the pleading stage because the alleged facts did not amount to outrageous conduct as a matter of law (CACI Nos. 1600 and 1602).

Third, emotional harm is harder to document than a medical bill. A lawyer licensed in your state can tell you how your state’s courts apply these standards.

Questions to sort a possible claim

• What exactly happened? Write down the conduct, dates and who was present while memories are fresh.
• Was it deliberate, reckless or careless? The answer points toward IIED, NIED or neither.
• Could it be more than an insult? Note any abuse of power or known vulnerability.
• How long has the distress lasted? Keep records of treatment, counseling and effects on daily life.
• Which state’s law applies? Elements, limits on NIED and filing deadlines vary by state.

This guide explains general legal concepts and is legal information, not legal advice. Emotional distress rules differ by state and depend on the facts; consult a lawyer licensed in the relevant jurisdiction about a specific situation.