One tort that is frequently alleged but infrequently proven is intentional infliction of emotional distress (“IIED”). In Nevada, a plaintiff must prove the following elements to prevail on an IIED claim:
- Defendant’s extreme and outrageous conduct
- Intent to, or reckless disregard for, causing emotional distress
- That causes (actually and proximately)
- Actual severe or extreme emotional distress in the plaintiff.
Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 92 (1981).
Extreme and outrageous conduct has to amount to more than just “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Burns v. Mayer, 175 F.Supp.2d 1259, 1268 (D. Nev. 2001). It requires actions that “go beyond all possible bounds of decency” and are “atrocious and utterly intolerable.” Alam v. Reno Hilton Corp., 819 F.Supp. 905, 911 (D. Nev. 1993).
Unlike in negligence or battery cases, the plaintiff’s resilience matters in IIED cases. In other words, it doesn’t matter if the plaintiff is overly sensitive or highly susceptible to emotional trauma—if your actions constitute extreme and outrageous conduct, and they cause actual severe or extreme emotional distress, you can be held liable, even if most other people would not have experienced emotional distress.
Emotional distress is usually measured using objective factors andphysical symptoms, like loss in sleep, weight, appetite, or vigor; the appearance of tremors or twitches; or sensitivity to noises.
And the IIED analysis is on a sliding scale: “The less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from the emotional distress.” Nelson v. City of Las Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983).
A video recently went viral where a mother and father trick a young boy into thinking he has Ebola after reading his temperature. We don’t know what the lasting effects on the boy are, or if he even understands what Ebola is. But is this the kind of behavior that qualifies as extreme and outrageous conduct?
Watch and read about the video below.
Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or firstname.lastname@example.org.