Key Takeaways

  • The Restatement (Second) of Torts § 46 defines and guides the application of intentional infliction of emotional distress (IIED) claims in U.S. tort law.
  • To prove IIED, plaintiffs must establish four elements: outrageous conduct, intent or recklessness, causation, and severe emotional distress.
  • Conduct must exceed mere insults or annoyances and rise to the level of being “extreme and outrageous.”
  • Special rules apply when third parties or “eggshell plaintiffs” are involved.
  • Courts evaluate the totality of the circumstances and apply a high threshold for what qualifies as compensable emotional harm.

Intentional Infliction of Emotional Distress: Torts & Tort Law Basics

Intentional Infliction of Emotional Distress

The Restatement (2nd) of Torts, section 46, states:

  • (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
  • (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:
    • (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
    • (b) to any other person who is present at the time, if such distress results in bodily harm.

So, IIED (Intentional Infliction of Emotional Distress) has four parts:

  1. outrageous conduct by the defendant,
  2. the intention of causing, or reckless disregard of the probability of causing, emotional distress,
  3. actual suffering of severe or extreme emotional distress, and
  4. actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

The law will not recognize a mere insult or emotional injury without some "plus factor": hence, the outrageous conduct requirement. Importantly, outrageous conduct will be found where the defendant knew the plaintiff to be particularly disposed to harm by the conduct; in other words, the defendant can't plead a defense of having performed similar conduct in front of others with no damage if he knew the conduct would be received differently.

The distress suffered must be what a "reasonable person" would undergo given the circumstances, though there is an exception for "eggshell plaintiffs." Furthermore, as the name implies, bodily harm is not a requirement - mental damage alone may be sufficient. Where there is an absence of physical damage, the courts will often look more closely at the outrageous conduct itself, and an action will like where the conduct was sufficient to presume emotional harm.

As far as intent goes, willful, wanton or reckless behavior, in deliberate disregard of potential distress, will fulfill the requirement. With the exception of close family members, as evidenced in section (2)(a) above, or those who witness the event (2)(b), transferred intent will usually not be applied. But, in such cases where a third party is damaged, the court may look to familiar foreseeability analyses and the extent of the willful, wanton, or reckless conduct.

Types of Conduct That May Qualify as Outrageous

Not all distressing behavior rises to the level of outrageous conduct required under Restatement (Second) of Torts § 46. For a claim to succeed, the conduct must be so egregious that it would shock a reasonable person. Courts typically consider the following examples:

  • Repeated or ongoing harassment, especially by those in positions of authority or power.
  • Exploiting a known sensitivity or vulnerability of the victim.
  • Making threats of violence or harm, particularly when the victim is especially susceptible.
  • Public humiliation or emotional abuse in front of others.
  • Discriminatory behavior with malicious intent, especially in employment or housing settings.

Merely rude, insensitive, or inconsiderate actions are generally not enough to constitute IIED. The context—including the relationship between the parties—is crucial in determining whether conduct is outrageous.

Definition and Role of the Restatement (Second) of Torts § 46

The Restatement (Second) of Torts § 46 is a foundational legal doctrine outlining the standards for the tort of intentional infliction of emotional distress (IIED). Drafted by the American Law Institute, this section provides persuasive authority in courts across the United States, especially when interpreting what qualifies as “extreme and outrageous” conduct.

Courts often reference this section to determine if a defendant’s behavior goes beyond the bounds of decency accepted in a civilized society. The Restatement outlines the threshold for liability and clarifies how emotional harm alone—without physical injury—can lead to legal consequences if the distress is severe and directly caused by the defendant’s conduct.

Emotional Distress and the “Severe” Requirement

The plaintiff must demonstrate that the emotional distress suffered was severe, not just trivial or transient. According to the Restatement (Second) of Torts § 46, this level of harm exceeds ordinary fear, worry, or upset. Courts have recognized the following indicators of severity:

  • Inability to sleep or eat over an extended period.
  • Physical manifestations such as headaches, ulcers, or panic attacks.
  • Documented psychological conditions like PTSD or depression resulting from the event.
  • Requirement of therapy or psychiatric treatment due to the defendant’s conduct.

While physical symptoms are not required, they can strengthen the claim. Courts often look for corroborating evidence, such as medical records or expert testimony, to validate the severity of the distress.

Considerations for “Eggshell Plaintiffs” and Known Vulnerabilities

Under tort law’s “eggshell plaintiff” doctrine, a defendant is liable for the full extent of harm caused, even if the victim is unusually sensitive. If the defendant knew or should have known of the plaintiff’s susceptibility to emotional distress, courts are more likely to find the conduct outrageous. Examples include:

  • Mocking a person’s traumatic past.
  • Threatening someone known to be suffering from anxiety or depression.
  • Using slurs or demeaning language toward someone with a documented psychological condition.

This principle reinforces that what may not distress the average person could still be legally actionable if the defendant targeted a vulnerable individual intentionally or recklessly.

Application to Third Parties: Bystanders and Immediate Family Members

Subsection (2) of Restatement (Second) of Torts § 46 extends liability to situations where emotional distress is inflicted upon third parties. Courts will hold defendants accountable if their actions were directed at someone close to the plaintiff and certain criteria are met:

  • Immediate family members: If present during the event, even without physical injury, they may claim IIED.
  • Other bystanders: Must be present and experience bodily harm from the emotional distress.

This provision addresses scenarios such as a parent witnessing abuse directed at their child or a spouse watching their partner be harmed. The emotional harm must be both foreseeable and extreme in its impact.

Limitations and Challenges in IIED Claims

While the Restatement (Second) of Torts § 46 outlines a clear framework, successful IIED claims face high legal hurdles:

  • Proof of intent or recklessness: The defendant must have acted with the purpose of causing distress or with a reckless disregard of its likelihood.
  • High threshold for “outrageous” conduct: Everyday insults or workplace disputes generally won’t qualify.
  • Subjective nature of emotional distress: Plaintiffs must provide convincing evidence that their suffering was both real and severe.

Additionally, many jurisdictions require plaintiffs to first exhaust other legal remedies before pursuing an IIED claim, such as filing under harassment or discrimination statutes.

Frequently Asked Questions

  1. What is the Restatement (Second) of Torts § 46?
    It’s a legal guideline that outlines when someone can be held liable for intentionally or recklessly causing severe emotional distress through outrageous conduct.
  2. Can I sue for emotional distress without physical injury?
    Yes. While physical harm can support your claim, it is not required if the emotional distress is severe and properly documented.
  3. What makes conduct “outrageous” under the law?
    The conduct must go beyond all bounds of decency. Mere insults or annoyances are not enough—it must be extreme and socially unacceptable.
  4. Are third parties protected under § 46?
    Yes, if they are immediate family members present at the time or bystanders who suffer physical harm from the distress.
  5. What if I have a preexisting condition that makes me more sensitive?
    You may still recover if the defendant knew or should have known about your heightened vulnerability, under the eggshell plaintiff doctrine.

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