"My boss is always yelling and being hostile. Can I sue for emotional distress?"

Stress is part of life. Between paying high mortgages, getting the kids to their activities, chasing two incomes, and commuting in ever-worsening traffic, who isn't stressed?

How do courts distinguish everyday stress from trauma that crosses the line? For years, courts rejected emotional distress claims. They feared "opening the floodgates."

A car accident on Hampstead Road in Derry challenged the system. A woman in her kitchen heard a horrible crash and ran outside. Her daughter lay seriously injured in the road. Dad heard his wife scream. He ran outside.

Emotional distress claims by the parents were dismissed in Superior Court. Mother and father weren't direct accident victims. They were bystanders. Under the law then, bystanders had to be within a "zone of danger" created by the incident.

A previous emotional distress case was dismissed where a mother witnessed her 6-year-old daughter being crushed by a truck. The mother was not in the zone of danger. The court said public policy compelled it to hold a legal barrier against liability.

The barrier was broken in the Derry case. The New Hampshire Supreme Court ruled that a person who contemporaneously perceives a serious injury to a closely related person may recover for serious emotional harm. (Corso v. Merrill, 1979). But there are still many legal hoops to jump through. Most important, emotional distress caused by negligence must also include objective physical symptoms, proven by medical testimony.

Everyday stress and legally recognized mental harm were distinguished in this case. The court said recovery is denied for mere upset, dismay, humiliation, grief and anger. The emotional harm must be a painful mental experience with lasting effects.

These general principles are now accepted in most states. But change did not come without caution. A dissenting justice warned that the genie is out of the bottle. That judge hoped "someone will find a way to get him back in."

The genie jumps in and out of the bottle in some real cases.

A woman eating take-out from a restaurant bit into a bandage. The court rejected her emotional distress claim. She submitted no medical bills. The court explained that mental angst without physical symptoms fails to make a case.

We're talking about the law here. There are always exceptions. The exception to the medical, physical symptom requirement is where conduct causing emotional distress goes beyond intentional, amounting to outrageous. This must be what a divorce court was thinking when it granted emotional distress damages to a wife. Her husband drank every day, becoming so drunk he made a mess and got angry when the wife tried to clean up. A significant emotional distress finding was upheld by the N.H. Supreme Court, despite the lack of medical testimony.

In a major Massachusetts class action case, women whose mothers took the drug DES to prevent miscarriages claimed emotional distress. DES left the offspring statistically more likely to suffer an extremely lethal form of cancer. But the court said their fears did not meet the test of objective physical symptoms required in an emotional distress claim.

A woman sued the garage that botched repairs on her car. The court awarded her money for breach of contract. However, her emotional distress claim was rejected. The court found no evidence that the shop's treatment was extreme, outrageous or intolerable as required under the law.

In a case that comes closest to answering our question, Donna Agis waited tables at a Boston restaurant. One day, the manager announced that the cash drawer was being looted. Until someone confessed, he would fire the waitresses in alphabetical order. He fired Agis on the spot. She went all the way to the Massachusetts Supreme Judicial Court, which ruled that the manager's conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.

Stress permeates our lives. But in a legal sense, courts recognize it only where conditions such as objective physical harm or true outrage, not the Hollywood variety, exist.



Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.

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