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Suing For Emotional Distress: How and When to Sue?

If you’ve been through an accident or survived a traumatic event, you know that emotional distress is just as real and challenging as any physical injury. Which leads to an important question – when is suing for emotional distress the right choice for victims?

At Cohn & Swartzon, a personal injury law firm in Southern California, we’ve worked with countless clients who have suffered emotional distress as the result of an accident or injury. Pursuing a successful claim, however, requires an acute understanding of what emotional distress is – and what qualifies as “pursuable” under California law.

What Qualifies as Emotional Distress?

Emotional distress is mental suffering or negative emotional responses caused by a specific experience or event. 

Symptoms of emotional distress can include:

  • Anxiety or Depression
  • Irrational Fear or Panic Attacks
  • Feelings of Guilt or Shame
  • Insomnia or extreme fatigue
  • Increased use of mood-altering substances
  • Unexpected weight loss or weight gain

Emotional distress is sometimes used synonymously with “pain and suffering,” which isn’t exactly correct in the legal realm. Emotional distress falls under the umbrella of pain and suffering, but the latter also includes physical pain. 

Let’s say, for example, that you were the victim of a car accident. In this accident, you broke your leg, but now you also have insomnia. Insomnia could be considered a symptom of emotional distress, but the broken leg would also be factored into pain and suffering compensation.

There are two types of emotional distress that can be included in personal injury lawsuits: intentional infliction of emotional distress and negligent infliction of emotional distress. 

Intentional Infliction of Emotional Distress

In California, victims can sue for intentional infliction of emotional distress when “extreme and outrageous conduct by the defendant [has] the intention of causing, or reckless disregard of the probability of causing, emotional distress … that no reasonable man in a civilized society should be expected to endure.”

In simple terms, simply hurting someone’s feelings is not enough to support a claim or lawsuit for emotional distress. But extreme or outrageous behavior that targets and brings provable harm to a specific individual can serve as grounds for a claim in some circumstances.

Negligent Infliction of Emotional Distress

Unlike intentional infliction of emotional distress, plaintiffs in California can claim negligent infliction of emotional distress even if they were not otherwise injured or harmed. 

When these claims proceed to litigation, “the judge will normally decide whether a duty was owed to the plaintiff as a direct victim,” and “if the issue of whether the plaintiff is a direct victim is contested, a special instruction with the factual dispute laid out for the jury will need to be drafted.”

When is Suing for Emotional Distress the Right Choice?

It’s rare for an attorney to file a claim or lawsuit based on emotional distress or pain and suffering alone. 

You’ll almost always need proof of economic damages like repair costs, medical costs, and other damages to demonstrate the severity of what you’ve gone through. 

Once economic damages are established, your attorneys can make a credible case for emotional distress and other non-economic damages as part of your claim.

If you’ve sought therapy or counseling as a result of the incident in question, for example, your attorneys will be able to present those services as evidence of emotional distress.

Case Study: Emotional Distress in a Motorcycle Accident Case

Our client was on his motorcycle, on his way to work at a local theme park where he had been employed for many years. Without warning, a motorist exited a parking lot directly in our client’s path of travel. Unable to avoid the impending collision, our client’s motorcycle struck the car and our client was catapulted through the air, landing on the vehicle and unforgiving asphalt. 
This horrific accident resulted in a $1.25 million settlement of all available insurance proceeds and was able to help compensate our client for the pain, emotional distress, and lost income he had to endure.

Cohn & Swartzon’s Experience with Emotional Distress Claims & Lawsuits

In our experience as personal injury attorneys in Southern California, emotional distress is a vital component of any claim as part of non-economic damages

While Cohn & Swartzon does not take cases for emotional distress or pain and suffering alone, our team works tirelessly to demonstrate the reality of our clients’ struggles to maximize compensation and provide the foundation for restoring a normal life.

“Just like physical injuries from an accident, emotional distress can have long-lasting effects on a victim’s ability to recover and get their lives back to normal. We work closely with clients to discover and present evidence of their non-economic damages to hold the parties who are at fault accountable.”

– Saar Swartzon, Founding Principal, Cohn & Swartzon

If you are suffering from emotional distress as the result of an accident or someone’s negligence, speaking to a knowledgeable attorney as soon as possible could be life-changing. While emotional distress can be difficult to prove in some circumstances, an attorney can analyze the merits of your claim and help you choose the best course of action, which may include litigation to secure compensation.

Schedule a free consultation with Cohn & Swartzon to learn more about emotional distress and how it pertains to your personal injury case.



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