Home | Arthur Blyakher Discusses Emotional Distress Cases

Arthur Blyakher Discusses Emotional Distress Cases

Oct 12, 2023


Can I Sue For Emotional Distress?

Can I sue for emotional distress? I get that question all the time. Almost every case that I get a call on, that question comes up, “Well, what about my emotional distress?” And the simple answer is, yes, you can sue for emotional distress. But how? I’m going to pull back the current a little bit about this topic in general and how it comes up in the world of personal injury cases. There’s two types of claims for emotional distress, as a standalone claim. So, intentional infliction of emotional distress and negative infliction of emotional distress, and they’re very different. So I’m going to start with the intentional because I think those are the cases that people hear about more and they see more, and those are a lot tougher because for an intentional emotional distress claim, you have to prove that somebody did something egregious, and by egregious, the court really scrutinizes the conduct.

It has to go beyond any bounds of decency. Words alone are insufficient. It has to be something really bad and has to be intentional. That’s another element. It has to be done on purpose with the goal of hurting or disregarding the likelihood of a person being hurt, from an emotional standpoint. The third element is that you are actually suffering emotional distress, severe emotional distress. Being upset isn’t enough. So in those type of cases, you have to show some outrageous conduct and the severe emotional response to it. Negligent infliction of emotional distress is different. Until recently, you had to still show outrageous conduct. More recently, the courts in New York said, “You do not.” And this is good.

So any type of case, whether it’s a car accident, a medical malpractice, any type of case where there’s a wrongdoer, a person that is responsible, does something negligently and it results in emotional distress, you can sue for that. You no longer have to show the outrageous conduct for negligent infliction of emotional distress claims. So that’s good, but you still have to show the actual harm. Just saying I was hurt isn’t enough.

What Is Intentional Infliction of Emotional Distress?

Intentional infliction of emotional distress, I’ve personally only come across that one time, and it was recent. It was a case where it was a landlord that wanted to get the tenants out of their apartment and decided not to go through the proper legal process and took it upon themselves to force these people out by all means necessary. And in that case, the allegation was that the landlord first threatened to file a false complaint with child protective services against the tenants who had three kids, two which were teenagers, and one which was a five-year-old girl, and then actually did take that next step of calling ACS or Child Protective Services and made a false claim saying that the children were being abused, neglected, and all these terrible things.

And it resulted in an investigation. That’s intentional conduct. It was meant to hurt, to force these people to suffer in a way that they’ll have no choice but to give in to the landlord. And obviously it’s not hard to read or draw the nexus, the connection between that act of calling ACS and instigating an investigation and the emotional harm that comes from that for the parents and for the kids here. They’re the children, they were pulled out of their classrooms for meetings with ACS workers. The parents, they had to go through interviews and their parenting was questioned and the threat of losing their kids was very real.

And in their community, neighbors, teachers, principals, they were questioned about the parenting and how these kids were living. It was a great deal of not just stress, but embarrassment and the psychological emotional harm that came from that. And it was from an intentional conduct. And it wasn’t that clear, it was still a fight. The defendants in our case, they filed a motion to dismiss in saying, “That even if true, the act of calling ACS to getting an investigation isn’t egregious enough.” Luckily in our case, the court disagreed with them, agreed with us, and allowed us to present that claim to a jury, and we settled before the jury really had to decide.

But that’s the type of conduct at a bare minimum that’s required for an intentional affliction of emotional distress. You see it more often in cases with sexual harassment in the workplace. If a person is being subjected at their work to just really uncalled-for sexual harassment, advancements, touching, stuff like that, and it resulted in harm, a person can withdraw from their family, their home, lose their job and suffer the emotional consequences of being subjected to something as outrageous as that. Those are the claims that you see more often dealing with intentional infliction of emotional distress.

What is Negligent Infliction of Emotional Distress?

Negligent infliction of emotional distress, and this is more in the realm of what everybody asked me for, “Arthur, I got into a car accident, but I’m not really hurt, but I’m upset about it. Can I sue?” Generally nine out of 10 times, 99 out of a hundred times, I’ll say no because it’s usually not enough. Sometimes it is. One case that we had where it was a young girl was waiting at a bus stop and a drunk driver, ran a light, jumped the curb, went through the bus stop and hit this poor girl and she suffered catastrophic injury. Multiple broken bones, required multiple surgeries, prolonged hospital stay, then a rehab center. Her whole life was put on hold and was destroyed.

There the girl needed counseling because aside from the physical hurt, her whole life got turned upside down and she required counseling. She went to a psychiatrist. She dealt with the anxiety and the post-traumatic stress that comes with this type of catastrophic event, and she had a real diagnosis. That’s what’s required in a case where you have a negligent act that has a profound effect on you emotionally aside from the physical injuries. We often also see it in the medical malpractice setting with children. Devastating, heartbreaking cases where a child is stillborn as a result of a doctor’s malpractice and negligence and the emotional trauma that a mother will experience with that.

Now, like I said earlier, you do not need to prove extreme or outrageous conduct or negligent infliction of emotional distress claim, but you still have to show that the consequence of the act is a real emotional distress and how do you prove it? How do you prove any of these claims, emotional distress? Most easily, medical records. Now, if you are severely emotionally distressed, it makes sense that you will deal with that in a similar way that you would any other type of injury. You go to a doctor, you go to a counselor, you have some kind of documented proof that you’re going through this, but it’s not always that easy. It’s not always that simple. Sometimes you don’t have the money to pay for a doctor, to go to a psychiatrist. Sometimes you’re embarrassed. Sometimes you don’t even think about it that way. Your life just changes.

Then how do I prove it? Through words coming from you. You talk about it. You say how this affected you, how much weight does that have? Not much, because you have an incentive to say it, right? You’re suing for money. You have an incentive to present your claim in as terrible a light as you can. So we look to other places, other people that could corroborate that. Your spouse, if you’re married, your kids, if they’re grown enough, your parents, if they’re still involved in your life, your coworkers, your boss, other people that you deal with on a day-to-day basis that could say, “Because of this incident or since this incident, they haven’t been the same. They are withdrawn, they are constantly depressed, they’re angry.”

All of these things that evidence emotional distress can be enough, but it’s harder to prove. Now, what I see often and more recently as we learn more and more about the brain and how it works, see a lot of overlap in cases involving a traumatic brain injury and these claims of emotional distress. So as a lawyer, I will look to that first because an emotional distress claim is sometimes harder to prove and it’s not taken as serious by a jury.

What is Loss of Enjoyment of Life and What Does This Type of Case Look Like?

Now there’s something that we have a claim. Why would you sue for personal injuries? That’s called loss of enjoyment of life. If you are somebody, you have a regular job, you work nine to five, but in your free time you like to play music, that’s what brings you joy in your life. You play a piano, you’re in a band. After work, I like to have a glass of bourbon. Some people like to play the piano. We all do what works for us to relax, to reduce stress in our lives. And now you got into an accident, say you fell, you tripped and fell because somebody didn’t take care of their property the way they were supposed to, and you got injured and you broke your hand. And you can’t play the piano. You lost a part of your everyday life, what brought you joy.

And you tell me, “Arthur, I’m emotionally distressed about it.” I don’t know if I would bring that claim as an emotional distress claim. It makes more sense, let the jury here that you lost the enjoyment of your life because of this physical injury, and the jury ties it together. They’re not dumb. When they hear that this physical injury, a broken hand resulted in your inability to do what brings you enjoyment. They assign a value to that pain and suffering, and they’ll compensate you for that generally appropriately. So it might not make sense to have that fight on whether or not I’m proving enough on an emotional distress claim. You also see it, like I mentioned in brain injury claims. If I see a case where a person, whether they fell or it was a car accident, they hid their head, their loss of consciousness, and since then they’re exhibiting signs of depression, anger, impulse control. My first inclination now is to look at is this related to a brain injury more so than an purely emotional aspect.

Now we’re able to diagnose and treat and prove brain injuries a little better than we did a few years ago. You can test brain function and we know what parts of your brain affect what function in your body. Some parts of your brain allow you to move, motor function. Some parts of your brain affect speech, some parts of your brain affect mood. And if you are extremely depressed after an accident and you’re angry and your relationships are starting to fail, you no longer are performing at work or school the way you were before. I would like to get you to a neurologist and examine your brain. See if that’s really the claim here. That might be more easy to prove than an emotional distress claim that juries, especially in New York, they don’t treat them the same way.

Why Would a Lawyer Work on an Emotional Distress Case?

If they’re so difficult, if they’re so hard to prove, there’s so many moving parts on them and they might not even make sense? Because if it’s real, it deserves to be treated like any other injury. Luckily in society, we’ve moved towards a point where we’re recognizing all the different aspects of a person’s life and how it could be impacted and affected by trauma, physical trauma, emotional trauma, whatever it is. So I don’t like to disregard or discredit claims where a person says, “This has affected me emotionally.” But that doesn’t mean every case of a person being sad is a case worth bringing. And it takes us as lawyers to evaluate, to see, is this something that I could recover for from a jury? And I will treat it like any other injury, to do what’s right for a victim of somebody else’s negligence or intentional acts.

If you have an emotional distress case, contact one of our experienced attorneys for assistance.



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