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Intentional Infliction of Emotional Distress (IIED) - California Law

Summary: Intentional Infliction of Emotional Distress (IIED) claims require Defendant’s extreme and outrageous conduct with an intent or reckless probability to cause and actually causing Plaintiff severe emotional distress.

Cause of Action Elements: The elements of the tort of intentional infliction of emotional distress (“IIED”) are:

"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(2) the plaintiff's suffering severe or extreme emotional distress; and

(3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.

To prevail on an IIED action, Plaintiff must prove all three elements above.

Extreme and Outrageous Conduct:
"Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593). "Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' ' " (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028).

“[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128).

“ ‘Behavior may be considered outrageous if a defendant:

(1) abuses a relation or position that gives him power to damage the plaintiff’s interests;

(2) knows the plaintiff is susceptible to injuries through mental distress; or

(3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’ ”

(Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122).

Relationships that have been recognized as significantly contributing to the conclusion that particular conduct was extreme and outrageous include:

Mental State of Defendant: The fact that conduct might be termed outrageous is not itself sufficient. "The tort calls for intentional, or at least reckless conduct-- conduct intended to inflict injury or engaged in with the realization that injury will result." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210).

The conduct must be of a nature that is especially calculated to cause very serious mental distress. Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5).

Moreover, to support the cause of action, "[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903)

In Christensen, the California State Supreme Court noted that commentators had suggested recovery for reckless conduct usually requires that the plaintiff be present at the time of the conduct and be known by the defendant to be present. The court agreed: "..the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability… than allowed on a negligent infliction of emotional distress theory.”  (Christensen, supra, 54 Cal.3d at pp. 905-906).

“[I]t is not essential to liability that a trier of fact find a malicious or evil purpose. It is enough that defendant ‘devoted little or no thought’ to probable consequences of his conduct.” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031–1032.

“In determining whether the conduct is sufficiently outrageous or unreasonable to become actionable, it is not enough that the creditor’s behavior is rude or insolent. However, such conduct may rise to the level of outrageous conduct where the creditor knows the debtor is susceptible to emotional distress because of her physical or mental condition.” (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1469).

Severe Mental and Emotional Distress: "Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397).
"…[I]n the the tort of intentional infliction of emotional distress, …"severe emotional distress" … entails such intense, enduring and nontrivial emotional distress that "no reasonable [person] in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.  Schild v. Rubin (1991) 232 Cal.App.3d 755, 762-763).

Fear of Cancer, AIDS or HIV: “[I]t must ... be established that plaintiff’s fear of cancer [AIDS, or HIV] is reasonable, that is, that the fear is based upon medically or scientifically corroborated knowledge that the defendant’s conduct has significantly increased the plaintiff’s risk of cancer [AIDS, or HIV] and that the plaintiff’s actual risk of the threatened cancer [AIDS, or HIV] is significant.” (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 1004); Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 787–788. See also Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1075. CACI Number 1601.

“Emotional distress” includes any “highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, or worry.” (Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 397).

Physical injury and/or monetary loss is not required:
"‘One who has wrongfully and intentionally [suffered severe emotional distress] may recover compensatory damages even though he or she has suffered no physical injury,’ and ‘the right to compensation exists even though no monetary loss has been sustained.’ ” (Grimes v. Carter (1966) 241 Cal.App.2d 694, 699).

Trial Court Initial Determination:
“[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614).

Worker’s Compensation Exclusion: "Severe emotional distress" arising from "outrageous" conduct that occurred "at the worksite, in the normal course of the employer-employee relationship" is the type of injury that falls within the exclusive  province of workers' compensation. Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.  Such excludes and precludes an IIED cause of action.

Affirmative Defense - Privileged: “…it must also appear that the defendants’ conduct was unprivileged.” (Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 394).

Some Actual Case Examples:

   Extreme and Outrageous Conduct:

Severe Emotional Distress:

Workers' Compensation Exclusion:

Privilege Defense:

IIED Statute of Limitations: 
Because intentional infliction of emotional distress is an injury to the person, the applicable statute of limitations is two years (Code of Civil Procedure 335.1).  A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant. (Murphy v. Allstate Ins. Co. (1978) 83 Cal. App.3d 38, 50-51).


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Author: Attorney Matthew B. Tozer

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