Personal Injury: Emotional Distress

 

Shocked by apdk on flickr

Shocked by apdk on flickr

Stress infiltrates our lives.  Between bills, demanding jobs, nerve-wracking traffic, getting kids to their activities and other worries, who isn’t stressed?

How do courts distinguish every day stress from trauma that crosses the line? For years, courts rejected emotional distress claims.  They feared “opening the floodgates”.

 Foreign Objects in Food

People finding foreign objects in food often bring claims for emotional upset.  For example a woman eating Chinese restaurant take-out bit into a Band-Aid, sustaining understandable shock.  But, the resulting legal emotional distress claim failed in the courts.  There were no medical bills.  The appeals court explained that mental angst without physical symptoms fails to make a case.  

Outrage as Emotional Distress

But, if your last name begins with an “A” and the boss starts firing employees in alphabetical order, this does make a case.  This actually happened in a Boston restaurant.  The manager found the cash drawer was being looted and threatened that until someone confessed, he would fire the waitresses in alphabetical order.  Donna Agis was fired on the spot.   She went all the way to the Massachusetts Supreme Judicial Court, which ruled that the manager’s conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.

Emotional Distress Bystander

A woman in the kitchen heard a horrible crash and ran outside.  Her daughter lay seriously injured in the road.  The father, hearing screams, ran outside.  Emotional distress claims by the parents were dismissed in Superior Court.  Mother and father weren’t direct accident victims.  They were bystanders.  Under previous law, bystanders had to be within what the courts called a ‘zone of danger’ created by the incident to have emotional distress claims.  In an earlier case in which a mother actually saw her six-year-old daughter being crushed by a truck, the mother’s emotional distress claims were dismissed because she was outside the zone of danger.  The court said public policy compelled it to hold a legal barrier against liability.  However, that barrier was broken in this case.  The New Hampshire Supreme Court ruled that a person who contemporaneously perceives a serious injury to a closely related person may recover for serious emotional harm.  (Corso v. Merrill, 1979.)

But, there are still many legal hoops to jump through.  Most important, emotional distress caused by negligence must also include objective physical symptoms, proven by medical testimony.

Objective Physical Symptoms Required

In a major Massachusetts class action case, women whose mothers took the drug DES to prevent miscarriages claimed emotional distress.  DES left the offspring statistically more likely to suffer an extremely lethal form of cancer.  But, the court said their fears did not meet the test of objective physical symptoms required in an emotional distress claim.

Every day stress and legally recognized mental harm were distinguished.  The court said recovery is denied for mere upset, dismay, humiliation, grief and anger.  The emotional harm must be a painful mental experience with lasting effects.  These general principles are now accepted in most states. But, change did not come without caution.  A dissenting justice in the above Corso case warned that the genie is out of the bottle. The judge hoped “someone will find a way to get him back in.”

Stress permeates our lives.  But, in a legal sense, courts recognize it only where conditions such as objective physical harm or true outrage, not the Hollywood variety, exist.

These cases are from Massachusetts and New Hampshire, where I am licensed to practice law.  And, there are significant differences in how emotional distress claims are handled from state to state.  But, the general concepts reviewed here are the issues addressed in all jurisdictions.

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About Andrew Myers

Attorney Myers is a member of the American Association For Justice, Massachusetts Academy of Trial Attorneys, New Hampshire Association For Justice, National Association of Consumer Bankruptcy Attorneys & Rotary International. Legal services provided in Massachusetts (MA) and New Hampsire (NH).

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