Increasingly, plaintiffs are trying to recover damages for emotional distress unrelated to any bodily injury. And attorneys may be a new target for these claims: The Iowa Supreme Court recently approved potential emotional distress damages in a legal malpractice case. More than ever attorneys need the basics on making these claims in California and tactics for opposing them.
Recovering emotional distress damages that aren’t an adjunct to or result of bodily injury is done in two steps:
- Establish tort liability. The plaintiff first must establish the defendant’s legal liability to the plaintiff for the defendant’s act or omission. This basic principle underpinning the recovery of damages for all forms of harm and loss is stated in CC §1714: “Everyone is responsible…for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person” as well as for “the result of his or her willful acts.”
- Show genuineness. The plaintiff must then present evidence that gives “some guarantee of genuineness in the circumstances of the case.” See Molien v Kaiser Found. Hosps. (1980) 27 C3d 916, 926, 167 CR 831.
Even if the plaintiff is able to successfully complete these two steps, courts are reluctant to allow damages for claimed emotional distress when the plaintiff didn’t experience any actual harmful physical contact with his or her body. Courts reason that:
- such damages are difficult to measure and to prove;
- permitting recovery might encourage fictitious claims and create a flood of litigation; and
- defendants would be subject to liability for the remote consequences of their conduct.
So, if you’re representing the plaintiff seeking damages for emotional distress, start by pleading and proving the elements of one of the recognized contexts in which courts have permitted such recoveries. Only pursue negligent infliction of emotional distress if the elements of one of the others can’t be established. You can also try to persuade the court to recognize other circumstances in which recovery would be just.
But if you represent the defendant opposing recovery of emotional distress damages, start by reverting to a traditional duty analysis and argue that, in the circumstances,
- the defendant owed no duty to the plaintiff,
- no duty was breached,
- any breach was not the legal cause of the claimed emotional distress, and
- the claimed distress was fictional or so trivial that damages shouldn’t be recoverable.
For more on the circumstances supporting liability and pleading/proving an emotional distress claim, turn to CEB’s California Tort Damages, chap 6. To get the basics on the role of duty, you need to check out CEB’s California Tort Guide, chapter 1.
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