In New Mexico, there is an independent claim for intentional infliction of emotional distress (IIED). An IIED claim can be brought as part of another claim and/or lawsuit including personal injury, medical malpractice, defamation, slip and fall, and any other personal injury claim. It could be argued that an IIED claim could technically be brought on its own, but it is unlikely that there would be an IIED claim without some underlying claim for misconduct on the part of a defendant. So fortunately, a stand-alone IIED claim is not likely to ever be an issue so there would be no need to test the limits on an independent claim.
Intentional Infliction of Emotional Distress Defined
Intentional infliction of emotional distress is pretty straightforward in theory. A victim of IIED will have a claim when another (person, entity, company…) engages in “extreme and outrageous” intentionally harmful or reckless conduct that is likely to cause severe emotional distress.
The New Mexico jury instruction states:
To recover for intentional infliction of emotional distress, __________ (name of plaintiff) must prove that:
(1) the conduct of __________ (name of defendant) was extreme and outrageous under the circumstances; and
(2) __________ (defendant) acted intentionally or recklessly; and
(3) as a result of the conduct of __________ (defendant), __________ (plaintiff) experienced severe emotional distress.
Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person. Emotional distress is “severe” if it is of such an intensity and duration that no ordinary person would be expected to tolerate it.
NMRA, Rule 13-1628
“Extreme and Outrageous” Conduct Required
As can be seen from the jury instruction above, the conduct must be extreme and outrageous. IIED claims are not intended to address every kind of emotionally distressing conduct. They are not meant for “mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.” It must be much more than that.
In addition, the fact is that people have different sensitivities and very different tolerances for offensive conduct. Offensiveness simply is not enough. The conduct must be extreme and outrageous beyond the bounds of common decency. As the instruction further suggests, the conduct must also be “atrocious and intolerable to the ordinary person”.
In short, the conduct has to be extreme and outrageous which requires little further explanation.
Intentional or Reckless Conduct Required
Some folks are just unpleasant and offensive. This is not enough. The person must be acting with the purpose of causing emotional distress or in the alternative the conduct must have been reckless. Recklessness is very specifically defined in another New Mexico jury instruction related to punitive damages:
Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness. NMRA, Rule 13-1827
As can be seen, a finding of recklessness also requires intentional conduct. The intentional conduct must be done with “utter indifference” to possible harm to another. In this case, the defendant must have engaged in intentional conduct with utter indifference to likely severe emotional distress resulting from the conduct.
This will be a factual matter. But it will not be a defense for intentional or reckless conduct reasonably likely to result in severe emotional distress for the defendant to argue that he or she is just generally unpleasant or offensive. Consistently being an asshole is not a defense to an IIED claim.
Severe Emotional Distress is Required
Conduct can be horribly offensive, intentional, reckless, extreme and outrageous but without an actual showing of severe emotional distress, there is not claim for IIED. IIED claims are not meant for nuisances. This gets back to the different sensitivities and tolerances of people. Some people might be able to tolerate the behavior much better than others. Some may just be annoyed and irritated by the conduct while others might suffer severe emotional distress, severe depression, severe anxiety and fear, and even suicidal ideation, Those are the types of harm that IIED claims are meant to address.
It is said that you cannot sue someone for being an asshole. However, if the person’s conduct meets the requirements above and does cause severe emotional distress, you can sue that same asshole for IIED and you should.
Seek Legal Counsel for IIED Claims
IIED claims can be complicated and difficult. There might be a few steps necessary before a IIED claim becomes viable in a lawsuit. For instance, in an online stalking, violation of privacy or defamation type case, it will be hard for a defendant to argue he or she did not know the conduct would cause emotional distress if you have told them that is causing severe emotional distress. Continued stalking, violations of privacy, defamation or other outrageous behavior will pretty well doom the defendant. At that point, the only real question is; Does the defendant have assets or insurance that will cover the harm?
If you have a personal injury case, medical malpractice, defamation or even a slip and fall accident, if there was extreme and outrageous conduct, it is definitely worth exploring possible IIED claims. Collins & Collins, P.C. can be reached online or at 505.242.5958 for a free consultation.