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11/15/12 It's The Law: Emotional Distress Damages Are Difficult


My wife and I were trying to buy a house. After promising to sell to us, the owners sold to someone else. Our attorney says we do not have a claim because we did not have a written contract. But, we are emotionally distraught as our hearts were set on that home. Can we sue for emotional distress?


First, your attorney was right with respect to the purchase of real estate. An enforceable agreement to buy and sell real estate must generally be in writing, absent unusual circumstances. As for emotional distress, you probably do not have a claim that the courts would recognize. Florida courts differentiate between intentional infliction of emotional distress and negligent infliction. Florida generally follows what is known as the impact rule for negligent infliction of emotional distress.

The impact rule requires physical contact with the injured party in addition to emotional distress. The rationale is that it is too easy to fake emotional distress so the courts require something more. That means, Florida does not allow recovery for psychological trauma resulting from simple negligence unless there is some physical harm or injury. Florida courts have refused to allow recovery for negligent infliction of emotional distress where all the alleged injuries are claimed to be the result of emotional distress. A good example of the impact rule would be medical diagnosis. If a misdiagnosis merely causes mental anguish, the plaintiff's claim will be denied. But, if the misdiagnosis results in unneeded and harmful treatment that causes bodily injury, recovery for emotional distress may be allowed.

Other examples of refusal to allow recovery for emotional distress because of the impact rule include claim by the parents of a 4-year-old special needs student for emotional distress caused when the school bus driver got lost and the bus was four hours late arriving at school. Claims of a licensed street seller who was frequently arrested by police officers without physical injury were also denied.

The courts have carved out limited exceptions to the impact rule where circumstances indicate emotional trauma is likely and would be expected. Examples include unauthorized disclosure by a psychotherapist, liability of an attorney where his client remained in jail more than ten days because the attorney did not provide the court with documents that would have obtained the client's release, and a laboratory negligently violating confidentiality and privacy of an HIV test result. Interestingly, disclosure of information by a member of the clergy is not an exception to the impact rule.

The impact rule is "modified" when the plaintiff is in sensory perception of physical injury sustained by a close family member. The 1985 case of Champion v. Grey allowed the estate of a mother who died when she was overcome with shock and grief at the sight of her dead daughter who had been struck by a car to recover for negligent infliction of emotional distress.

The impact rule does not apply to intentionally inflicted emotional distress. In those cases, the defendant has by extreme and outrageous conduct intentionally or recklessly caused emotional distress to another. The key in these cases is determining whether a person's conduct is so outrageous as to form the basis for a claim. It must go beyond all bounds of decency. If a person is uniquely subject to emotional distress, and the other person knows it, the threshold for determining outrageous conduct will be lowered where the second person proceeds with knowledge of the other's susceptibility.

Teasing of a co-worker about the co-worker's HIV infection was held not so outrageous as to allow recovery for intentional infliction of emotional distress. On the other hand, where a claimant had little time to live because of lung problems, and the insurance carrier's agent delayed a double lung transplant after order by the court, the conduct was so outrageous and extreme as to go beyond all possible bounds of decency and supported a claim for intentional infliction of emotional distress.

Cases involving claims for emotional distress are fact based and subjective. Breach of contract will not normally carry with it damages for emotional distress. But, this is an area that is evolving with changes in society. Since the facts of each case will control, review with an experienced attorney in these cases is recommended.

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