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...