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By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last updated May 02, 2022
Yes, but only in rare situations in which your ex’s behavior was really bad and the distress you suffer is severe. In some states you must have physical symptoms to move a case forward. You do not need to have suffered physical abuse, but a standard breakup is not enough. You need to show particularly reprehensible behavior. The worse the behavior, the more likely that a jury will find in your favor.
However, these cases are hard to win. The law expects people to tolerate a certain amount of rude or offensive conduct just as a part of life. Further, relationships can be hard on both parties, and if there is bad behavior on both sides, a jury may be less inclined to find in your favor. Your ex may also respond to your suit by suing you back, so emotional distress cases often become a mess.
If you are thinking about suing your ex for emotional distress, you should consider consulting with an experienced personal injury attorney. State laws vary a lot. A lawyer could help you better understand your legal rights and represent you if they think you have a valid personal injury claim in your state.
If only every relationship were peaceful and joyful. Unfortunately, that is simply not the case. Relationships can be hard. People sometimes do horrible things to those they profess to love. And it can get particularly nasty.
Suppose you find yourself in a long-term relationship. Everything was wonderful. You moved in together and talked about getting married. But something changes. Over time, your relationship deteriorates. Your partner becomes cruel. They do horrible things. They keep telling you that you are worthless, and you begin to believe them. It takes a terrible toll on you. You can’t eat. You can’t go to work. You are anxious all the time. You suffer panic attacks.
One night, after a particularly brutal fight, you finally decide to end the relationship. But even after the breakup, your symptoms don’t go away. You still can’t eat. You continue to get panic attacks. A friend brings you to a psychiatrist. You are diagnosed with an anxiety disorder and PTSD. And your psychiatrist says your symptoms were caused by your ex.
Your friend is livid and wants you to sue your ex. Depending on where you are, you might have a case.
There are two types of emotional distress claims. Your first claim may be for intentional infliction of emotional distress. Intentional infliction of emotional distress is a tort (a civil wrong the law provides a remedy for). While the requirements vary from state to state, you typically need to show the following elements:
If you can show that each of these elements is more likely than not to have occurred, you may be able to recover. But it is an uphill battle.
To be successful you must show that your ex’s conduct was truly extreme and outrageous. This is hard to define; it’s more of a “you know it when you see it" standard. Insults are typically not enough. The conduct needs to exceed all bounds of human decency. Different states have different phrases for it, but the idea is that any average person who heard of your ex’s atrocious conduct would be shocked and outraged.
An example may help. Suppose you have a deep-seated fear of snakes. Your ex knows this and takes advantage, deliberately locking you in a closet full of snakes for the sole purpose of torturing you. A court may believe that this behavior is so intolerable that it constitutes “extreme and outrageous" conduct.
You also need to show causation. Causation is a direct, reasonably foreseeable link between the conduct and your injuries. In our example, the psychiatrist connected your anxiety disorder and PTSD to your ex’s conduct. Based on that, a court would likely find that the two are linked and that you have met your burden to show causation.
Finally, you need to show that the emotional distress you suffer is severe. This is also hard to define and depends on the state you are in. Generally speaking, it needs to be bad enough that no reasonable person would be expected to endure it.
Back to our first example. According to your psychiatrist, you developed an anxiety disorder and PTSD because of your ex’s horrible treatment of you. You can never be sure, but a jury would likely conclude that reasonable people aren’t supposed to endure panic attacks and that you have met your burden.
Note that in our example, the distress you suffer has a physical component — panic attacks. In some states, you cannot recover for severe emotional distress unless you experience physical symptoms.
Your second claim against your ex may be for negligent infliction of emotional distress. Negligent infliction of emotional distress is also a tort, albeit a controversial one. Most states that allow this claim place severe limitations on it. To prevail, you need to show four elements:
We already discussed causation and damages, so let’s turn to duty and breach.
A duty is a legally recognized obligation to conform to a particular standard of conduct. Your personal injury lawyer, for example, has a legal duty to act in your case as another reasonably prudent lawyer would in a similar situation. If they don’t, your lawyer has breached their duty and you can sue for malpractice. This is the general standard for a legal duty: to act as a reasonably prudent person in the same or similar circumstances. A judge decides whether you owe someone a legal duty.
Let’s switch up our example. Suppose after a particularly nasty fight, your ex goes to a bar. They get sloshed. On their drive home, they hit a pedestrian walking their a loved one, let’s say a child, in a crosswalk. The pedestrian is taken to the hospital and goes home with six stitches. Although the child wasn’t hit, they have nightmares that just won’t go away.
Here a judge would find that your ex owed a duty to the pedestrian. Pedestrians in crosswalks are foreseeable to drivers, including drunk drivers. A judge may also find that your ex owed a duty to the child, were they to sue for the nightmares, because they were within what’s called the “zone of danger." The zone of danger rule just means that the defendant (the person you are suing) was very close to serious physical harm. The law varies significantly from state to state, so you would be wise to consult with a local personal injury lawyer.
A breach of duty is the failure to conform to the standard of conduct required by law. As noted above, the standard of care requires you to act as a reasonably prudent person in the same or similar circumstances. Using your drunk-driving ex’s car accident as an example, a jury would find that reasonably prudent people don’t drive drunk and, therefore, that your ex breached their duty of care to the pedestrian and the child.
If you were to sue your ex and win, you would be able to recover damages. Damages are money the person has to pay you if you win your civil lawsuit. They are intended to compensate you for all of the harms (past, present, and future) you suffer as a result of the breach of the duty owed to you. These are called “compensatory damages."
You can have both economic injuries and non-economic injuries that make up your emotional distress damages. Economic damages are monetary losses that are objective and verifiable, which means you can prove them in court. These include:
In our original example, your economic damages would include your psychiatrist’s bill and your lost wages for the time you were unable to work.
Non-economic damages are subjective, nonmonetary losses, such as:
In our original example, depending on the state you are in (states define these categories of damages differently), your non-economic damages could include all three.
You may live in a state that allows you to recover punitive damages for infliction of emotional distress. Punitive damages differ from compensatory damages in that they are not intended to compensate you for a loss you suffered. Instead, they are intended to punish a wrongdoer for horrible or malicious conduct and to deter others from engaging in similar conduct. Not every state allows you to recover punitive damages in an infliction of emotional distress case, so check with your lawyer on what the potential damages in your case are.
State law limits the time in which you bring an emotional distress lawsuit. As you can see, the statutes of limitations range from one year to six years, with many coming in at two or three years.
If you are considering suing your ex for emotional distress, you should consider getting legal advice from a law firm with experienced personal injury lawyers promptly. They can help you determine in an attorney-client relationship whether you have a claim under the laws of your state and whether it makes sense to bring a lawsuit. Many will offer a free consultation for your personal injury case.
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