Suing for emotional distress can be challenging. Strictly speaking, suing for emotional distress in Texas is impossible if emotional distress is your only complaint. In Texas, negligent infliction of emotional distress (NIED) is not an independent claim. Instead, you must assert non-economic damages as part of a personal injury claim.
The “Physical Injury” Requirement for a Personal Injury Claim
In states that allow claims for negligent infliction of emotional distress, you can use a psychological disorder such as PTSD or depression as a stand-alone basis for a lawsuit. In Texas, however, you need a medically detectable physical injury to seek negligence compensation. If you have a detectable physical injury, you can file an ordinary personal injury lawsuit.
Once you have a personal injury claim, however, you can also seek damages for emotional distress. The difference with NIED is that your claim depends on an underlying physical injury for its viability. NIED, as recognized by other states, does not depend on the presence of a physical injury.
What is Negligence Liability?
- Duty of care: The defendant owed you a duty of care.
- Breach of duty: The defendant breached their duty of care to you.
- Damages: You suffered losses in the form of a physical injury
- Causation: The defendant’s negligence caused your personal injury.
You must prove each of the four foregoing factors on a “more likely than not” basis. Once you do this, the full spectrum of personal injury damages is potentially available to you, depending on the facts of your case. You might even win punitive damages.
What are Non-Economic Damages?
“Non-economic damages”, by contrast, are a form of intangible loss. In Texas, they can include:
- Disfigurement: Extensive facial scarring, for example.
- Emotional or mental anguish or pain: including depression, PTSD, etc.
- Loss of enjoyment of life: Did you used to enjoy exercise and sports? How about chess? Whatever it is that you enjoyed but you can’t do anymore because of your injuries represents a loss of enjoyment of life.
- Physical impairment: Immobility and the inconvenience of dealing with the physical limitations imposed by an injury are compensatable.
- Physical pain and suffering: This could mean aches, pains, trauma, respiratory distress, insomnia, shock, and a thousand other ways that a damaged physical condition could cause you physical distress.
- All other non-economic losses
The child, parent, or spouse of an injury victim can file a “loss of consortium” claim for the loss of the emotional benefits of a relationship due to their injuries.
Wrongful Death Claims
If someone dies because of another party’s misconduct, the victim’s spouse, children, and parents, or any one or more of them, can file a wrongful death claim. The damages available for a wrongful death claim are different from the damages available for a personal injury claim.
Nevertheless, damages for various forms of emotional distress are available. They include the mental pain and anguish the survivors suffer, and the loss of the victim’s love, companionship, comfort, and society.
Settlement Negotiations: Greater Flexibility
Nothing stops you from demanding damages for a stand-alone claim of emotional distress—except the probable unwillingness of the opposing party to negotiate a claim that you cannot enforce in a Texas court. Ultimately, it is your ability to win a lawsuit against the opposing party that gives you bargaining power in most cases.
A Personal Injury Lawyer Can Help You
Even if your distress ultimately arose from a physical injury, it can be challenging to claim a specific amount of compensation for something as intangible as emotional distress. Contact FVF Law to schedule a free consultation to discuss your claim with an experienced attorney.