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Tennessee has the
tort of Intentional Infliction of Emotional Distress which is an important cause
of action that allows a plaintiff to recover damages when the conduct of the
defendant is outrageous. There are very
specific requirements for a plaintiff to be able to prove this cause of action
in court. In order to support a claim
for Intentional Infliction of Emotional Distress, the Tennessee Supreme Court
has held that the following elements are required:
The elements of an
intentional infliction of emotional distress claim are that the defendant's
conduct was (1) intentional or reckless, (2) so outrageous that it is not
tolerated by civilized society, and (3) resulted in serious mental injury to
the plaintiff. Regarding the first element, the law is clear in Tennessee and
elsewhere that either intentional or reckless conduct on the part of the defendant
will suffice to establish intentional infliction of emotional distress.
Rogers v. Louisville
Land Company et al, 367 S.W.3d 196, 205 (Tenn. 2012). The Rogers case is
a very important Tennessee Supreme Court case that definitively outlined the
requirements for this cause of action. In
this case the court made it very clear that there is no difference between a
claim for Intentional Infliction of Emotional Distress and the claim for Reckless
Infliction of Emotional Distress. Both are considered part of the same cause of
action (either intentional or reckless conduct is sufficient to meet the
threshold required for this cause of action).
Further, the familiar standard of “outrageous”
conduct that has long been required for an Intentional Infliction of Emotional Distress
claim still stands. Specifically, that the conduct must be “so outrageous that it is not tolerated by
civilized society”. Obviously, this is
generally a jury issue however courts have long stepped in to evaluate whether
the facts of a case meet this threshold before sending the case to the jury. This standard is a standard that can change
over time because it is based on what is tolerated by “civilized society”. For example, it is my view that certain types
of sexual harassment and sexually hostile work environment situations are
currently experiencing a shift in what is tolerated by “civilized” society.
Importantly, our country is making significant progress on what it considers to
be outrageous conduct by individuals who sexually harass women. It is my position, therefore, that this
standard has changed over time and what may not have been considered outrageous
conduct in the 1980s certainly is outrageous conduct today.
The final element for this claim is that the
plaintiff must have a “serious mental injury” caused by the conduct of the
defendant. The Rogers case
spelled out in very clear detail what is required to establish a “serious
mental injury”. It is important to note that there is no requirement for a
medical doctor or medical proof to be presented to establish that a “serious
mental injury” has occurred. Instead, the court found that the jury can make
this determination based on the evidence presented at trial.
The Rogers court
outlined the evidence that can be presented to establish a “serious mental
injury” as follows:
To summarize the
preceding review of the law in Tennessee regarding the “severe mental injury”
element of the torts of intentional infliction of emotional distress and
negligent infliction of emotional distress, the following nonexclusive factors
inform the analysis and are pertinent to support a plaintiff's claim that he or
she has suffered a serious mental injury:
(1) Evidence of physiological manifestations
of emotional distress, including but not limited to nausea, vomiting,
headaches, severe weight loss or gain, and the like;
(2) Evidence of psychological manifestations
of emotional distress, including but not limited to sleeplessness, depression,
anxiety, crying spells or emotional outbursts, nightmares, drug and/or alcohol
abuse, and unpleasant mental reactions such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, and worry;
(3) Evidence that the plaintiff sought
medical treatment, was diagnosed with a medical or psychiatric disorder such as
post-traumatic stress disorder, clinical depression, traumatically induced
neurosis or psychosis, or phobia, and/or was prescribed medication;
(4) Evidence regarding the duration and
intensity of the claimant's physiological symptoms, psychological symptoms, and
medical treatment;
(5) Other evidence that the defendant's
conduct caused the plaintiff to suffer significant impairment in his or her
daily functioning; and
(6) In certain instances, the extreme and
outrageous character of the defendant's conduct is itself important evidence of
serious mental injury.
The plaintiff may
present this evidence by his or her own testimony, the testimony of lay
witnesses acquainted with the plaintiff such as family, friends, and
colleagues, or by the testimony of medical experts.
Rogers at 205. These factors are not an exhaustive list nor
are each of the factors required to be present to support this claim. However, these factors are an important list
of evidence that could support the claim that a “serious mental injury” has occurred.
A claim for Intentional Infliction of Emotional
Distress is often underutilized by plaintiffs. It is also often not taken
seriously by defendants. That can be a huge mistake. This can be a source of
very significant damages in Tennessee when the case involves facts where egregious
and outrageous conduct exist. Keep in
mind that claims for Intentional Infliction of Emotional Distress are subject
to the caps on damages put in place by Tennessee Tort
Reform as I discussed in the linked prior blog post.
Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation blog.
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