Emotional Distress Claims, Dignitary Torts, and the Plaintiff-Friendly Fiction of Reasonable Sensitivity

Abstract

In 2019, an article in the University of Memphis Law Review considered whether individuals with a highly sensitive temperament are able to recover for intentional infliction of emotional distress (IIED), given the tort’s ‘reasonable person’ standard. The author argued that this standard discriminates against plaintiffs who are more susceptible to emotional harm than average. How has the law of IIED historically accounted for plaintiffs with underlying conditions? Here this question is addressed with respect to diagnosed and undiagnosed psychiatric vulnerabilities, including suspected or confirmed genetic predispositions, in light of continued research interest in the field of psychiatric genetics. Although scientific advances could allow plaintiffs to assert harm in new ways, alternatively shifting the focus of IIED away from the plaintiff’s vulnerabilities and toward the defendant’s conduct could return IIED to its roots as a dignitary tort and better serve the interest of individual corrective justice.