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Elements of Infliction of Emotional Distress Claims

Under Colorado law, there are two types of claims of infliction of emotional distress: (1) negligent infliction of emotional distress and (2) intentional infliction of emotional distress.

These sorts of claims are often contentious and difficult to understand because the law is so specific with respect to each claim. Historically, both claims have been treated with suspicion by courts because the harm that results is inherently difficult to gauge. Rather than a claim that arises from some obvious wrongdoing such as a car accident where the plaintiff is physically injured, these two claims often arise from more stranger and more tenuous fact patterns.

For example, where the plaintiff suffered “emotional distress” because a tragic accident happened around them. In that case, the plaintiff themselves were not physically injured but rather just watched someone else get injured. Because of the risk that a plaintiff could simply make up or embellish their damages, courts have imposed lots of rules as to when these sorts of claims can be brought and what types of damages can or cannot be recovered.

A cause of action for negligent infliction of emotional distress in Colorado has six elements:

  1. The defendant’s conduct is negligent;
  2. The negligent conducted created an unreasonable risk of physical harm;
  3. Causing the plaintiff to be in fear of their own safety;
  4. That the plaintiff either (a) suffered physical injury or (b) was in the “zone of danger” created by the negligent conduct;
  5. The plaintiff’s fear had had “physical consequences” or “long-continued emotional disturbance,”; and,
  6. The defendant’s conduct was the cause of the damages.

See, e.g., Vance v. TOLMAR, Inc., 2018 WL 1456275, at *7 (D. Colo. Mar. 23, 2018) citing Draper v. DeFrenchi–Gordineer, 282 P.3d 489, 496–97 (Colo. App.2011). Take a look at the DeFrenchi-Gordineer case here.

In contrast, a claim for intentional infliction of emotional distress in Colorado has just three elements:

  1. The defendant engaged in extreme and outrageous conduct;
  2. The defendant did so recklessly or with the intent of causing the plaintiff severe emotional distress; and
  3. The defendant’s conduct caused the plaintiff severe emotional distress.

See Colo. Jury Instr., Civil 23:1 citing Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)

Learn more:


More About Negligent Infliction of Emotional Distress (“NIED”)

Both claims for emotional distress necessarily typically arise out of situations where the plaintiff was not harmed in some other, physical way otherwise the plaintiff would have another tort claim such as negligence or battery. “To establish the claim, a plaintiff must show that the defendant’s negligence created an unreasonable risk of physical harm and caused the plaintiff to be put in fear for his or her own safety, that this fear had physical consequences or resulted in long-continued emotional disturbance, and that the plaintiff’s fear was the cause of the damages sought.” Draper v. DeFrenchi-Gordineer, 282 P.3d 489, 496–97 (Colo. App. 2011). Under Colorado’s rule, the plaintiff must show that he or she was actually in the “zone of danger.”

As the cases explain, if the injury or danger is to a third-party and the plaintiff just observes it, then there can be no recovery. See id. (“Thus, a direct effect on the plaintiff—being placed in danger and in fear for one’s own safety—is necessary to a claim of negligent infliction of emotional distress.”). However, if a plaintiff is in the “zone of danger” and they also observe a loved one in the zone of danger too then the plaintiff may be able to recover additional damages. See id. (“Although the plaintiff’s trauma would clearly be exacerbated by witnessing injury to a loved one during the same incident, the threshold inquiry concerns the direct harm to the plaintiff.”).

A plaintiff alleging a claim for NIED need not show that they were physically injured by an impact at the time of the act but must show that at some point in time (either at the time of the act or later) that they suffered physical injury. See, e.g., Towns v. Anderson, 579 P.2d 1163, 1165 (Colo. 1978).


More About Intentional Infliction of Emotional Distress (“IIED”)

Intentional infliction of emotional distress is in some ways harder to prove and in others easier to prove. One of the elements of intentional infliction of emotional distress (“IIED”) is that the conduct be “outrageous.” Outrageous conduct is conduct is conduct “so extreme in degree as to go beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.” Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 991 (Colo. App. 2011).

The Colorado jury instruction on what constitutes emotional distress defines it as “highly unpleasant mental reactions, such as (nervous shock, fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry) and is so extreme that no person of ordinary sensibilities could be expected to tolerate and endure it.” Colo. Jury Instr., Civil 23:4. Although IIED claims require a showing of outrageous conduct, they do not have the same damage and “zone of danger” requirements as NIED claims do.


Learn more about the elements for claims of negligence, unjust enrichment, or breach of contract.