Emotional distress claims date back to the 1800's and have changed considerably throughout their history. At their core is the idea that not all losses are physical or pecuniary in nature. While early courts were understandably reluctant to encourage such claims, the trend has been towards recognizing them. There are three distinct types of emotional distress claims: those based in negligence, those based in intentional tort, and those based on specific statute.
Negligent infliction of emotional distress - this category can be further broken down into two types: direct and bystander claims. Whether a direct claim for negligent infliction of emotional distress applies to a situation is fairly self-evident; whether a bystander claim for negligent infliction of emotional distress applies to a situation is not. The basic tests for a bystander claim are usually one of the following:
1) zone of danger - plaintiff must have been exposed to possibility of harm sufficient to cause reasonable fear for safety;
2) physical impact - plaintiff must have actually been physically injured or "impacted;" or
3) foreseeability - plaintiff's emotional damages must must be reasonably expected in light of their relation and/or proximity to an injured party.
Intentional infliction of emotional distress - this category allows a plaintiff to recover on a defendant's harmful actions constituting intentional or reckless conduct that is extreme and outrageous and causes severe emotional distress. Though the accompanying high level of medical malady and distress is difficult to prove, the extreme and outrageous element is probably the most difficult hurdle for plaintiffs; it requires conduct "so atrocious that it passes the boundaries of decency and is utterly intolerable in a civilized community." Hubbard v. United Press International, Inc., 330 N.W. 2d 428, 439 (Minn. 1983).
If you were hurt by someone's negligence or intentional conduct, or if you witnessed a traumatic incident concerning a fried or family member, you should consult with an attorney right away.