Section 4.7 What Is Severe Emotional Distress?

• Library: Tort Law 2016

F. (§4.7) What Is Severe Emotional Distress?

IIED’s third element—severity—is the most dynamic element of the three. Changing precedent and non-uniform adoption makes proving severity the most challenging for Missouri lawyers. The difficulty lies in:

· inconsistent precedent;

· divergence between the court of appeals and the Supreme Court; and

· confusion after courts originally applied NIED (negligent infliction of emotional distress) standards to intentional infliction facts.

Debate over severity pleading standards centers on whether the emotional distress must result in bodily harm that is both (1) medically diagnosable and (2) medically significant. Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983), is the genesis case sprouting dissenting offshoots. Bass was a negligent infliction case and established the idea that negligent infliction of emotional distress cases without physical injury require both a medical diagnosis and a medically significant injury.

Readers should be clear on one issue—recent rulings clearly indicate that Missouri does not require a medical diagnosis or documentation of injuries to prove this element. This chapter details the history of "severity" in Missouri because of its importance to IIED precedent and current application in negligent infliction settings.

"Missouri courts have, in large part, adopted the Restatement’s definition of [IIED]." Bailey v. Bayer CropScience L.P., 563 F.3d 302, 311 (8^th Cir. 2009). "An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm." RESTATEMENT (THIRD) OF TORTS § 46 (2012). Plain interpretation of this section makes clear that the Restatement does not require that bodily harm accompany an IIED claim.

Further, comment j of § 46 of the Restatement (Second) of Torts (1965) is in accord with Missouri law, stating that:

Complete emotional tranquillity [sic] is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.

The Eighth Circuit Court of Appeals reviewed the issue de novo in Bogan v. General Motors...