Emotional Distress Claims

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By Joan Ogeto

The Law Assumes That Most Insults, While Unfortunate, Are A Part of Life That People Must Endure

In the wake of an incident marked by negligence, the path to seeking legal recourse seems clear when it comes to physical injuries. Yet, within these complex scenarios, a frequently posed query emerges: “Is it possible to pursue legal action for emotional distress?” Let us delve into the intricate intersection of emotional turmoil and the law, and shed some light on the frequently overlooked realm of emotional distress litigation. When we contrast emotional distress with physical injuries, the former becomes a more elusive concept to measure or quantify. 

Emotional distress essentially refers to the mental suffering and anguish caused by either negligence or intentional actions. In the eyes of the law, it is classified as a psychological injury that can be asserted and addressed through civil lawsuit. This means legal action against someone for causing emotional trauma can be taken, provided there is sufficient and convincing evidence.  It is worth noting that specific circumstances, like cases involving sexual abuse or defamation, offer distinct bases for pursuing a claim related to emotional distress.

The legal concept known as the tort of intentional infliction of emotional distress, often referred to as “outrage,” made its debut in legal academic writings during the 1930s. Instances that give rise to emotional distress claims can manifest in various scenarios. Emotional distress claims come in two primary forms: Negligent infliction of emotional distress and Intentional Infliction of emotional distress. The former arises when a person causes harm unintentionally. At the core of these claims lies the principle that a plaintiff can seek compensation when they experience emotional harm as a result of the defendant’s conduct, regardless of whether it was intentional or not.

In the current landscape of tort law, a plaintiff seeking recompense for emotional distress stemming from deliberate and cruel actions would typically invoke a claim of intentional infliction of emotional distress. Legal intervention in such cases occurs when the inflicted distress reaches a level of severity that no reasonable individual could reasonably endure. Given the inherent challenges in assessing emotional harm, the incorporation of a reasonableness standard has been deemed essential since the early days of legal practice. This standard serves to prevent frivolous lawsuits arising from minor insults and offenses. The notion of “outrage” has come to be evaluated based on the sensibilities of an average, reasonable person, ensuring that only distress resulting from genuinely appalling conduct would warrant legal liability. This perspective was articulated clearly by Professor Calvert Magruder in 1936: “A person who, without just cause or excuse, and in a manner surpassing all bounds of decency, deliberately disrupts another’s mental and emotional peace to such an acute degree that it could reasonably be expected to lead to harmful physical consequences, may be held liable for damages for such mental and emotional disruption, even if no demonstrable physical consequences actually follow.”

In practice, courts have widely construed the reasonableness limitation to pertain to an individual of “ordinary sensitivity”. This interpretation has raised questions about whether it might deny legal remedies to plaintiffs who react with excessive distress, such as those who identify as Highly Sensitive Persons (HSPs). Considering this concern, how does tort law typically address plaintiffs with pre-existing vulnerabilities or heightened susceptibility to harm? In various aspects of tort law, courts have generally acknowledged the existence of uniquely vulnerable plaintiffs who may experience and deserve compensation for unforeseen consequences following a physical injury. This is commonly referred to as the “eggshell skull” or “thin skull” rule. According to this principle, the defendant is responsible for the consequences of their actions on the victim, regardless of their prior knowledge of the plaintiff’s pre-existing conditions. The defendant is held liable for any unforeseeable reactions the plaintiff may have to their negligent or intentional actions. However, it’s important to note that the application of this rule has limitations and has been less clear-cut when it comes to mental harm.

Claims related to intentional infliction of mental distress are an attempt to strike a delicate balance between holding individuals accountable for causing significant harm to someone’s mental well-being and preventing frivolous claims. This balance is challenging to achieve because mental harms are often subjective and ambiguous, unlike physical injuries, which are easier to pinpoint. Emotional distress can manifest in various forms, such as ulcers, cognitive impairment, headaches, or even conditions like anxiety, PTSD, and depression. 

Even if the defendant’s actions were intentional or malicious, liability for this type of tort typically doesn’t apply unless the conduct in question is so shockingly outrageous and extreme that it goes beyond the reasonable bounds of decency. However, it’s important to note that there’s no precise definition for what behavior meets this standard. Courts make this determination on a case-by-case basis, relying on their own sense of judgment and fairness. Each case is unique and decided based on its specific circumstances.

In the past, monetary awards for emotional distress were typically granted only when there was accompanying physical injury. However, nowadays, courts may grant compensation for emotional distress without the presence of physical harm. This shift is particularly notable in defamation cases. Defamation lawsuits often seek damages to address feelings of humiliation and embarrassment. In certain instances, these emotional distress damages can be recovered even if the words in question are not defamatory. To qualify however, these words must be exceptionally extreme and outrageous, exceeding the boundaries of normal human decency and being seen as intolerable in a civilized society. Mere insults generally do not meet this threshold, as the law assumes that most insults, while unfortunate, are a part of life that people must endure.

In 2019, an article published in the University of Memphis Law Review examined the potential outcomes for a plaintiff identified as a Highly Sensitive Person (HSP) in a lawsuit involving intentional infliction of emotional distress. An HSP is an individual within the neurodivergent spectrum thought to possess heightened sensitivity within their central nervous system, making them more responsive to physical, emotional, or social stimuli. The prediction was that a highly sensitive plaintiff might not find legal recourse, as courts typically assess what would be considered harmful or offensive to an average, “reasonable” person, while HSPs, as defined in the field of Psychology, tend to react more strongly emotionally than the average person. It has been suggested that the standard of reasonableness in tort law may not be fair or applicable to approximately 20% of the population who fall into the category of Highly Sensitive Persons. Some have argued that introducing expert witness testimony regarding high sensitivity could potentially assist in obtaining remedies for HSPs in legal cases.

For a successful claim of emotional distress damages, a claimant must demonstrate either a physical injury leading to emotional distress or, alternatively, severe emotional distress resulting in physical symptoms, as exemplified by the Kenyan civil case MKK v CWN [2016]. In this instance, the claimant suffered a severe psychotic episode, leading to hospitalization and a cascade of emotional struggles, ultimately impacting his academic performance. Although the claimant had pre-existing mental or psychiatric issues that were exacerbated by the situation, the application of the “eggshell skull” principle in tort law argues that the defendant must accept the claimant as they are. This means that the defendant cannot evade liability due to the claimant’s unique vulnerability or pre-existing psychiatric disorders. This legal doctrine underscores the importance of addressing emotional distress claims with sensitivity, recognizing the complexity of mental health issues in legal proceedings.

The world of emotional distress as a tort has, intriguingly, long perplexed the legal system. In its infancy, such claims found little foothold as a cause of action, often dismissed by courts due to their perceived speculative nature and the formidable burden of proof they posed. The overarching concern of the judiciary was to prevent the proliferation of baseless claims and the ensuing deluge of litigation.

Yet, within the intricate tapestry of legal proceedings, the pursuit of compensation for emotional distress emerges as a realm imbued with profound intricacies and nuances. As we navigate these legal currents, it becomes imperative to recognize the enduring relevance of the torts surrounding intentional and negligent infliction of emotional distress. Despite the growing understanding in legal contexts, the journey in this field remains far from complete. 

Each legal case unfurls as a unique tapestry, intricately woven with its own complexities and peculiarities. The delicate interplay of various factors significantly influences the resolution of each case, making it abundantly clear that the pursuit of justice defies confinement within rigid, one-size-fits-all approaches. In this evolving legal landscape, it has become increasingly evident that emotional distress can no longer be easily dismissed.This underscores the dynamic nature of our legal system, where shifts in knowledge and understanding can reshape the course of justice. As we reflect on this evolution, it becomes evident that the pursuit of emotional distress claims has matured, continuously pushing the boundaries of the legal system.


Fraker, R. (2008). Reformulating Outrage: A Critical Analysis of the Problematic Tort of IIED Vanderbilt Law Review.  Volume 61(3). https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1511&context=vlr

Cantu, C.E. (2002). An Essay on the Tort of Negligent Infliction of Emotional Distress: Stop Saying It Does Not Exist. St. Mary’s University School of Law. https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1376&context=facarticles

MKK v CWN [2016] eKLR

Suuberg, A. (2023). Emotional Distress Claims, Dignitary Torts, and the Medical-Legal Fiction of Reasonable SensitivityFiction of Reasonable Sensitivity. Journal of Law and Health. Volume 36(2). https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1631&context=jlh#:~:text=The%20story%20of%20IIED%20is,subjective%20nature%20of%20mental%20harms

O’Brien, S. (2019). The Highly Sensitive Person’s Redress for Intentional Infliction of Emotional Distress: Utilizing Experts in the Courtroom. The University of Memphis Law Review. https://www.memphis.edu/law/documents/05_obrienfinal_nobanner.pdf

The writer is a lawyer

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