The statute of limitations is the amount of time in which the person who suffered damages can sue the person who caused them harm. Under New York state law, the statute of limitations for emotional distress is one year from the date of the act for intentional infliction of emotional distress (IIED).
The limitations period is three years from the date of the act for negligent infliction of emotional distress (NIED). Infliction of emotional distress is a tort, a civil wrong, that one party inflicts upon another. It is not a criminal offense.
What Qualifies as Emotional Distress?
Emotional or mental trauma is emotional distress. An act which causes a person to suffer emotional distress can be anything from a physical act like an assault, to a verbal act like making statements to scare someone. Multiple individuals can file a lawsuit against the defendant, or perpetrator. Damages from emotional distress include:
- Medical bills, if the person sought medical care to recover, including therapy.
- Lost wages from missing work.
- Loss of future earning capacity if the defendant’s acts led to a disability, including a mental state that did not allow the plaintiff to work at the same level as before.
- Property damage.
If the plaintiff is in pain or severely disabled or disfigured due to an injury caused by the defendant's conduct, they can recover additional damages for:
- Pain and suffering.
- Emotional distress.
- Loss of consortium for new limitations placed on their family.
- Loss of the ability to enjoy their life.
The plaintiff can combine a claim for NIED or IIED with another cause of action, such as personal injury, breach of contract, or fraud. The plaintiff should file their lawsuit as soon as possible after the incident. A different cause of action may have a different statute of limitations.
Differences Between NIED and IIED
A person commits intentional infliction of emotional distress when they engage in extreme or outrageous behavior intentionally or recklessly, and the action causes the victim to suffer severe emotional distress, mental trauma and/or bodily harm. It is not required that the victim suffer bodily harm.
Under New York law, a claim for IIED must contain a showing of four elements:
- Extreme and outrageous conduct.
- With intent to cause, or disregard a substantial probability of causing severe emotional distress.
- A causal connection between the conduct and the injury.
- Severe emotional distress.
Examples of Intentional Infliction of Emotional Distress
Examples of the tort of intentional infliction of emotional distress include:
- Persistent and regular sexual harassment that results in the plaintiff developing a fear of being sexually assaulted and losing their job for not agreeing to unwanted sexual activity.
- Persistent and regular harassment that results in the plaintiff suffering severe weight loss and ulcers.
- Statements that suggest the defendant knew why a crime was committed against the victim, which result in the plaintiff suffering severe emotional trauma and later miscarrying a pregnancy.
A person commits negligent infliction of emotional distress when their negligent behavior causes a victim to suffer mental distress. Generally, there must be physical harm as well as mental harm for a plaintiff to recover damages, but there are exceptions to this rule.
One example of NIED is when a doctor negligently gives a patient an incorrect medical diagnosis which causes the patient to take the incorrect prescription medicine and to suffer from severe depression. The patient could also sue the doctor for the separate tort of medical malpractice.
Preparing for Negotiations and Court
A victim of infliction of emotional distress should consult a personal injury attorney and also seek medical help, including therapy. They should carefully document their claims. If they have a claim against an employee of New York City, the claim should be filed within 90 days of the act that caused IIED and/or NIED.
The plaintiff should gather documents for preparing their case:
- Medical bills and records to show the plaintiff’s treatment for physical injuries and/or mental health and the incident’s psychological effects.
- Expert testimony from doctors or therapists to show how the incident affected and continues to affect their daily life.
- Daily progress notes and what they have been doing to improve their situation. These notes document their level of pain, anxiety and/or depression, and other effects of the incident, such as high blood pressure.
- Plaintiff's own testimony, which can make an extremely strong case to the court or jury.
- Testimony from the plaintiff’s family, friends and coworkers.
- Photo or video evidence, such as before and after photos or videos of physical effects upon a defendant. For example, a video could show how a plaintiff developed a crooked gait after falling from fright.
Duty to Mitigate Damages
The court expects a plaintiff to take steps to mitigate their damages after an incident. This prevents their condition from worsening. Steps to mitigate damages include:
- Medical damage mitigation, like seeking treatment for injuries, including mental health concerns, within a reasonable amount of time after the incident.
- Loss of income mitigation, including making a reasonable attempt to find another form of employment if the plaintiff has to miss work or gets fired from their job due to emotional distress.
- Property damage mitigation, like getting a vehicle repaired in a reasonable amount of time after an accident or storing it in a facility to keep it safe from the elements. For example, the court could hold the plaintiff partially at fault if they failed to act to protect their damaged property from an intervening event like a blizzard that caused further damage.
Methods to Calculate Damages in Plaintiff's Complaint
The two main methods to calculate damages in an IIED or NIED civil action are: the multiplier method and the per diem method.
The multiplier method involves multiplying the current and future costs of the injuries by a number between 1.5 and 5. The more severe the emotional harm, the higher the multiplier.
The per diem method involves applying a daily compensation rate to the plaintiff’s emotional distress. The number of days is estimated using the plaintiff’s medical records and expert testimony.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.