Tort of Intentional Infliction of Emotional Distress is a HARD Claim to Prove
The tort of intentional infliction of emotional distress is a HARD claim to prove. It sounds like a sexy claim to assert against a defendant, but it’s a hard claim to prove. Here is why:
Intentional infliction of emotional distress requires the following elements: (1) intentional or reckless conduct; (2) outrageousness beyond all bounds of decency; (3) causation; and (4) severe distress. The second prong is the gravamen of the tort. The Restatement (Second) of Torts § 46 cmt. d (Oct. 2024 ed.) describes the standard as follows:
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
Steinmetz v. Pickholtz 50 Fla.L.Weekly D1281a (Fla. 3d DCA 2025) (internal citations omitted).
Next time you are thinking about claiming intentional infliction of emotional distress, remember that unless you can properly plead and then prove the extreme and outrageous conduct, the claim is DOA. Again, while the claim may sound like a sexy claim to assert, this by not means it will be a successful claim to assert.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
