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Personal Injury

Getting Emotional About Damages

Personal Damages

A prior female client of ours was changing in a local retail store when she heard rustling in the acoustical tiles above her. She saw a peeping Tom looking down at her while she was in a state of undress. Prior emotional trauma caused her to relive a number of horrors from her past, and she ended up hospitalized for physical and emotional problems. The peeping Tom turned out to be a store employee who, along with other employees, used to eat their lunch above the ladies’ changing room to indulge in their sick pleasure.

More recently, a client of ours was berated over the telephone by an abusive customer service representative who had more interest in “clearing” customer complaints than taking care of our client’s (correct) request for a credit on her phone bill. The abuse increased until the representative told the client that he was “calling the police” to have her arrested. The client suffered a life-changing heart attack.

Cases of emotional abuse can be tragic as can the damage that they cause, but what are the parameters of “emotional distress” cases?

Traditionally, the law took a dim view of purely emotional claims. Quite simply, the common law (which was the predecessor of current laws) believed that we should not be concerned about lawsuits over “hurt feelings.”

Over time, a number of safeguards were put in place. At first, claims for emotional distress had to be accompanied by some physical injury. Later the rule was lessened to include “physical impacts,” and sometimes those impacts did not have to be upon the claimant. In the first series of such cases, the courts allowed parents who witnessed the tragic death of their children to assert a claim above and beyond a more typical “wrongful death” claim.

In recent times, the rules have been loosened further, although the courts are reluctant to entertain claims of a purely emotional nature. Simply negligent behavior itself may not be sufficient. In order to prevail, a claimant must show “outrageous behavior” on the part of the other party and real emotional damages must rise almost to the level of physical injury.

Is such a standard possible to fulfill? Undoubtedly, yes. The effect that injury victims experience from such “outrageous” misconduct can be real. As demonstrated in the above cases, such cases can lead to extreme emotional turmoil and even medical complications, hospitalizations and permanent injuries. This is beyond question in the literature in modern psychiatry but caution is in order. Such cases can also be difficult to bring and only a truly awful behavior will lead to compensation. As with all such cases, careful review by competent counsel is in order.


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