CHAPTER 8 - 8-10 NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• Jurisdiction: United States

8-10 Negligent and Intentional Infliction of Emotional Distress

Because of the personal nature of the attorney-client relationship and the difficult emotions that clients experience is some areas of the law, former clients on occasion have sued their attorneys for negligent infliction of emotional distress and/or intentional infliction of emotional distress. These claims are rarely successful. Moreover, they seem to run counter to the notion that malpractice claims are limited to damages that are economic rather than noneconomic in nature.

8-10:1 Negligent Infliction of Emotional Distress

For a party to prevail on a claim of negligent infliction of emotional distress, a plaintiff must plead and prove the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress."¹⁶⁶ As to the first and second elements, they "essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause distress and, therefore, they would not be liable."¹⁶⁷ Recovery for negligently caused emotional distress does not require actual physical injury or a risk of harm from physical impact.¹⁶⁸ The plaintiff must plead and prove that the defendant should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.¹⁶⁹

More often than not, the Superior Court has stricken claims for negligent infliction of emotional distress arising in a legal malpractice context.¹⁷⁰ On a few occasions, however, such claims were allowed to proceed.¹⁷¹ There is an interesting question about whether the plaintiff needs expert testimony to support a claim for negligent infliction of emotional distress.

8-10:2 Intentional Infliction of Emotional Distress

Claims for intentional infliction of emotional distress in...