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Damages for Emotional Distress

Massachusetts law allows recovery for emotional distress damages. Prerequisites for awarding these damages depend on whether the mental harm was negligently or intentionally inflicted, which this article will discuss, along with limitations imposed on such damages and factors courts consider in granting them.

Individuals who suffer harm may recover for mental anguish, humiliation, nervous shock, fright and anxiety. They may be compensated for their deteriorating health, psychiatric, counseling and medical expenses, diminished earning capacity and past, present and future pain caused by emotional distress[1]. Depending on circumstances underlying the injury, testimony by the plaintiff and those who observed him/her may suffice to prove emotional distress, while other instances may require expert testimony.

Negligent infliction of emotional distress is a tort claim recognized in Massachusetts. Absent bodily injury, a successful negligent infliction of emotional distress claim requires proof that the defendant’s negligence caused the plaintiff to suffer emotional distress. The plaintiff must also prove that the physical harm plaintiff endured was manifested by objective symptoms and that a reasonable person in the same situation also would have suffered emotional distress[2]. Many courts have abandoned a requirement for the plaintiff to suffer physical harm[3].

If the severe emotional distress suffered by the plaintiff was intentionally inflicted, establishing physical harm to recover is unnecessary. In Agis v. Howard Johnson Co.[4], the Supreme Judicial Court said recovery was predicated on showing the emotional distress was severe. In addition, the Court held the plaintiff must prove that the defendant’s conduct was extreme, outrageous and beyond all possible bounds of decency. Finally, the defendant must have known or should have known the offensive conduct would result in emotional distress[5]. One case illustrating such conduct involved a restaurateur who sought to discover which employee who was stealing from the restaurant by the systematic alphabetical firing of servers. Another case involved a landlord who knowingly allowed sewage and water continually to flood a tenant’s apartment.

Mental distress damages may be awarded to an individual in cases in which a third party sustains bodily injury. In Dziokonski v. Babineau[6], the Supreme Judicial Court allowed a mother’s emotional distress claim against a driver who struck her child before she arrived at the accident scene and observed her injured child. Likewise, a spouse’s emotional distress claim proceeded where she and her children first observed her husband, who suffered a workplace injury caused by his negligent employer, in the hospital, not at the accident scene[7]. An emotional distress victim’s spouse may pursue loss of consortium damages arising from that emotional distress.

Courts rely on several factors in deciding whether liability should attach for emotional distress, including the degree of familial or other relationship existing between the claimant and the injured third party and when, where and how the claimant learned of the third party’s injury. Additionally, courts weigh:

  1. “The nature and character of the alleged harm;

  2. The severity of the harm;

  3. The length of time the complainant has suffered and reasonably expects to suffer; and

  4. Whether the complainant has attempted to mitigate the harm.”[8]

Generally, an emotional distress claim must be pursued within three years of when the harm was suffered. In one instance, however, the Supreme Judicial Court started the statute of limitations clock for a plaintiff who endured six years of coercive psychological abuse when the plaintiff discovered he’d been mentally harmed by the defendant’s behavior[9]. Recovery for emotional distress usually is impermissible in breach of contract cases, though a trial court judge did allow emotional distress damages under Chapter 93A, the Commonwealth’s consumer protection law, against an insurance carrier for its alleged bad faith nonpayment of an injured insured’s medical bills. The anti-SLAPP statute[10] has been used to defeat emotional distress claims grounded only on a party a seeking 209A protective order against an individual.

Personal injury cases are often fact dependent and complex. They require an astute legal professional to handle the matter in a technical fashion. If you have any questions about personal injury matters, call us for a free consultation at 617-657-HURT (4878) or fill out our contact form here.


[1] George v. Jordan Marsh Co., 359 Mass. 244, 245 n.1, 268 N.E.2d 915 n.1 (1971).

[2] Payton v. Abbott Labs, 386 Mass. 540, 547, 437 N.E.2d 171, 181 (1982).

[3] Sullivan v. Boston Gas Co., 414 Mass. 129, 132 n.4, 605 N.E.2d 805, 807 n.4 (1993).

[4] 371 Mass. 140, 145, 355 N.Ed.2d 315, 319 (1976).

[5] Id., Restatement (Second) of Torts §46, comment I (1965).

[6] 375 Mass. 555, 568, 380 N.E.2d 1295, 130i2 (1978)

[7] Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 518, 413 N.E.2d 690, 697 (1980).

[8] Stonehill College v. MCAD, 441 Mass. 549, 576 (2004).

[9] Howe v. Palmer, 80 Mass. App. Ct. 736, 745 (2011).

[10] M.G.L.c. 231, §59H

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