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How Do I Seek Emotional Distress Damages?

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  • Written By: Renee Booker
  • Edited By: E. E. Hubbard
  • Last Modified Date: 08 April 2014
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    Conjecture Corporation
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When a person is considered to be legally injured, these injuries are not always physical. In many cases, a person suffers emotional injuries as the result of an accident or as the result of another person's intentional actions. Jurisdictions differ in how they approach emotional distress damages; however, there are three basic theories under which a plaintiff may be compensated for emotional distress damages. All three scenarios are fall under the purview of tort law, or the law of injuries. A plaintiff may receive compensation through filing a lawsuit for emotional distress damages as a result of an intentional tort, a negligent tort, or as aggravated damages when physical injuries are also present.

Courts have long allowed a plaintiff to claim aggravated damages when he or she has been physically injured. The most common example is an automobile accident case wherein the plaintiff receives physical injuries as a result of the accident. The plaintiff is clearly entitled to compensation for the physical injuries suffered in the accident. In most jurisdictions, the plaintiff may also sue for aggravated damages, such as pain, suffering, or emotional distress. The legal theory under which emotional distress damages are compensable in this situation is that the defendant's tortious conduct caused the plaintiff emotional damages as a result of the physical damages.

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For many years, courts required a plaintiff to show actual, or physical, injuries in order to claim damages for emotional injuries as well. Most tort claims, such as an automobile accident, are negligent torts, meaning the defendant did not use reasonable care to prevent harm to the plaintiff. Some courts now allow a plaintiff to recover for emotional distress when physical injuries have been suffered by another person, such as a spouse or relative. In the automobile accident example, a spouse might be able to receive compensation for emotional distress damages if the spouse was the one in the accident and he or she suffered physical injuries on the basis that the injuries suffered caused emotional distress to the spouse.

The tort of intentional infliction of emotional distress is a relatively new tort; however, it is recognized in a number of jurisdictions. A plaintiff may recover damages if he or she can prove that the defendant intentionally inflicted the emotional distress. The tort is used most often in situations where the plaintiff was threatened with the use of physical force, but never actually suffered physical injuries. For instance, if the defendant threatened to assault the plaintiff, yet never actually did, the plaintiff may still have suffered considerable emotional distress damages as a result of the threat.

In order to receive compensation for any of the emotional distress torts, a plaintiff must first file a lawsuit against the defendant. Once the lawsuit has been filed, the parties may be able to work out a settlement for emotional distress damages outside of court. If a settlement is not agreed upon outside of court, then a trial will be necessary. At trial, the plaintiff will need to present evidence that he or she was emotional traumatized by the defendant's conduct. Witness testimony, medical records, and diary or journal entries are often good sources of evidence to prove emotional distress.

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