Attorney Steve Legal Definitions – the TORT of Intentional Infliction of Emotional Distress (IIED). If you have suffered severe emotional distress due to internet related activities call to discuss with a California Internet Attorney. You may be entitled to recover significant monetary damages.
There is one TORT every bar student can expect to see on the bar exam – intentional infliction of emotional distress (“IIED”). This is going to be on the bar exam because it is a fun one to test, and something as practicing lawyers we hear clients claim almost every single day in our practice. The other reason is because there are many different elements to the cause of action, and some minute sub-rules you need to know. So watch this video, and if it is helpful share it your social media networks with other law students trying to pass the bar exam, paralegals trying to pass the paralegal exam, or your favorite law student battling their first year torts exam. Ask yourself with Attorney Steve Slay the Bar, “why am I paying for bar review?”
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Intentional Infliction of Emotional Distress
IIED is known as the “tort of outrage.”
Issue spotting: Facts you are looking for on bar exam: People doing outrageous things to each other (spitting of their faces, rude conduct, treating people despicably, common carriers making incredible insults, etc, etc. etc. You are looking for some type of conduct that is “shocking” in nature or something that would make you shout “THAT'S ATROCIOUS” or “THAT'S HEINOUS.” When you see that, you drop down the key legal elements:
Phrase that pays: “Intentional infliction of emotional distress is the intentional or reckless causing of severe mental or emotional distress by extreme and outrageous conduct.”
BOOM, throw that down and then analyze the facts and apply the facts to the law.
Additional related black letter law: Here is the black letter law you need to know to master the tort of IIED on your exams:
Intentional – IIED is an intentional tort. Therefore, the Defendant must have acted with an intent to carry out the act in question and the intent to cause the emotional harm. Intent is knowledge with substantial certainty that the act (and also the intent to cause emotional harm) will occur. For example, when pulling out a chair from underneath someone to make them fall, all that is required is that the Defendant intend to pull the chair out – they do not need to intend to cause the broken neck that resulted.
Reckless – Even if the act is not “intentional” if it was reckless to a conscious disregard the requisite mental state can also be met. So for example, using the above, if the Defendant was drunk and rolling around wildly and the chair was pulled out from underneath the Plaintiff, this can form the basis of IIED claim. This is critical to catch on the bar exam as “intentional” acts are easier to spot, reckless acts are not quite as easy.
Extreme distress – This is something that most clients fail to understand there needs to be proof of suffering more than the ordinary “reasonable person” should be expected to endure. Even if you have an intentional or reckless, extreme and outrageous act a Plaintiff still needs to show that this “caused” severe mental or emotional distress. Let me highlight the keyword SEVERE!!! You have to normally have some type of objective evidence (though not always) to prove your claim and have doctor bills, psychologist bills, medical bills etc. to provide some substantiation for the claim of damage. Bruised ego or hurt feelings alone will not normally suffice to make the tort work.
DAMAGES ALERT: Note that on your law exam you should discuss potential recovery even where there is no medical bills, doctor visits, emergency room visits. Argue the Plaintiff may be entitled to monetary damages for pain and suffering, humiliation, mental anguish, grief, loss of sleep, anxiety, fright, injury to dignity, humiliation, lack of productivity, worry, post traumatic stress disorder (PTSD) etc.
Causation – Causation is another thing that needs to be proven in every IIED tort case. A Plaintiff must prove the extreme and outrageous intentional or reckless act was the legal cause of Plaintiff's injury. This means Plaintiff was the actual and proximate cause of the damages. If there is an unforeseeable intervening act (i.e. the intentional malicious act of a third persons), this will cutoff the Defendant's liability. So in every fact pattern you must act whether the Defendant actually caused the damages being complained of.
Extreme & Outrageous Conduct – Finally, this is the other big kicker in IIED cases. To prove the tort of intentional infliction of emotional distress, a Plaintiff must show that the Defendant engaged in an act that society (i.e. the jury) would consider to be “extreme and outrageous” and “beyond all bounds of decency that a civilized society should be asked to tolerate.” This is NOT an easy bar to hurdle. You have to have the facts that establish this. Look to the fact pattern and explain the facts. What is “extreme and outrageous” is usually a question of fact for the trier of fact.
Attorney Steve Tip: Look for conduct that relates to vulnerable parties (ex. vulnerable classes you may see on your bar exam include small children, pregnant women and elderly citizens – often translates into a possible financial elder abuse claim). Also look for those persons with superiority in position (for example landlords, bill collectors, caretakers, common carriers, employers, school principles, and those in a position owing a fiduciary duty).
Also note that an act that may seem harmless can become atrocious when:
a. the Defendant is aware of the special vulnerability or frailty of the Defendant, or
b. where the conduct is repeated over and over again.
1. No “transferred intent doctrine” (the Defendant must have formed the internet to inflict serious emotional distress. The intent of another party cannot be transferred to Defendant like it can with other torts.
2. There is generally no requirement to show a physical manifestation of injuries, although this would help the case.
3. Where a Plaintiff does not believe they can show “intentional or reckless” there is also the tort of Negligent Infliction of Emotional Distress (NIED). This might need to be alleged in the proper case as well.
4. In same cases you might be able to bring a small claims case (up to $10,000 for IIED.
5. Third parties may be able to recover for IIED / NIED even they were not the party directly targeted. For example, a mom feels distressed when a policeman bullies and kills her child in a display of police brutality where the mom was present to see it, and the copy knew she was present. Discuss the elements.
“A Plaintiff third party bystander can recover for emotional damages suffered due to extreme and outrageous acts committed against a third party where:
a. The third party Plaintiff is the close relative or family member of the person targeted
b. Plaintiff was present at the scene
c. Defendant knew the third party was present
d. Plaintiff actually witnessed the act at issue
7. Common Carriers and Innkeepers are held to a higher standard of care to their guests (ex. plane, bus, taxi drivers, ship captains, etc.) . They might be held to a higher standard of care and liable for conduct, threats, insults, indecent proposals, etc. that may not be deemed extreme and outrageous when such acts committed by another (for example a bus driver telling a passenger “you stink get off the bus we don't serve your type”).
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Some things that can happen online that may support an IIED or defamation claim
- Posting pictures of sexual interactions (revenge porn)
- Intentional abusive and despicable slander online (social media account takeover)
- Relentless cyberbullying
- Relentless cyberstalking
- Posting nude photos, bikini photos, or lingerie photos without consent to attempt to smear or injure another
- Serious invasions of privacy (ex. disclosing embarrassing personal and private facts that harm, damage and injure you)
- Serious and completely outrageous libel cases (false statements of fact made online, which seriously injure and damage your reputation, or your business and impact your ability to conduct business.
- Other malicious and intentional online conduct designed and calculated to seriously harm or injure a person or business
- Can a GrubHub driver LEGALLY insult a restaurant patron by shouting "WHY THE FUCK AREN'T YOU WEARING A MASK."
GRUBHUB driver insults restaurant customer. Is it intentional infliction of emotional distress? If so, who would you sue?
Here is an incident I recently saw on my facebook page (I have deleted the poster for privacy purposes). It really disturbed me and got me thinking.....can a GrubHub (or Uber Eats, Door Dash,Drizzly or Postmates for that matter) come into a restaurant, or liquor establishment for a pickup and insult a customer of the restaurant/establishment for NOT WEARING A MASK? Here was the post and my response:
Here was my response.
People should not have to raise kids where strangers come up to their tables while eating and start yelling at them. Can the restaurant or establishment be sued? Can GrubHub be sued? Is their driver really an "independent contractor?" These are new age litigation issues. It concerns me that these drivers are delivering food to people. Some people wonder "will they spit in the food if they think I am republican?" This is beyond what I think people should be forced to tolerate in a civilized society. Will this type of sick and depraved heart be actionable in a court of law? We will probable soon find out. #MaskHysteria
Contact a California personal injury and emotional distress lawyer
If you have a potential case involving EXTREME AND OUTRAGEOUS CONDUCT and CAUSING SEVERE EMOTIONAL INJURY We can be reached at (877) 276-5084. We may be able to take your case on a contingency fee basis or reduced fee. Call for a free initial consultation. You can also email us through our contact form