Emotional Distress in Tort Law: Themes of Constraint
A patchwork of liability rules that would appear puzzling to an unschooled, outside observer characterizes the overall design of tort doctrine addressing intentional infliction of emotional distress, negligent infliction of emotional distress, and claims of emotional harm of more long-standing vintage. Whether these rules hang together in a satisfying way is a principal question addressed in this essay.
My discussion is organized around the larger pragmatic and normative policy considerations that run through the cross-currents of doctrine, making reference along the way to the superstructure of rules and limitations that rise above the surface rather than treating the rules as a focal point. In a following section, I offer a brief discussion of emotional distress associated with protracted loss of companionship or anxiety – as contrasted with claims focused on immediate reactions to unexpected, traumatic events – to consider whether these scenarios make out a special case for recovery. Finally, I offer a concluding thought on the notion of “deserving victims” in emotional distress settings.