SC recognizes the torts of negligent infliction of emotional distress and intentional infliction of emotional distress, although they can be difficult cases to bring.

When can a bystander sue for negligent infliction of emotional distress? What if the bystander is also physically injured? Does it matter if the bystander is related to the person who was hurt in the accident?

Can cruel jokes and bullying be the basis of a lawsuit for intentional infliction of emotional distress? When can you sue for intentional infliction of emotional distress in SC?

If you were physically injured as a bystander to an accident, if you witnessed a traumatic accident involving a family member, or if you have been subjected to extreme emotional damage because of another person’s actions, call the Myrtle Beach personal injury lawyers at Coastal Law now for a free consultation and case evaluation.

Does SC Recognize Negligent Infliction of Emotional Distress?

SC officially recognized the tort of negligent infliction of emotional distress in Kinard v. Augusta Sash & Door Co. in 1985.

In Kinard, a mother and her daughter were both hurt when a truckload of trusses fell from another driver’s truck and hit their car. Both were physically injured, but the daughter spent three months in a coma and suffered a permanent mental disability because of the accident.

The SC Supreme Court held that, in addition to personal injury claims for the physical injuries to mother and daughter, the mother could recover for negligent infliction of emotional distress:

In this action, the plaintiff seeks damages not only for her physical injuries, but also for severe shock and emotional trauma caused by witnessing serious injury to her daughter. Plaintiff alleges she cries often, has lost weight, is unable to do heavy housework, is unable to sleep, and has difficulty socializing. She also contends she is unable to tolerate stress.

There is no requirement that the plaintiff suffered physical injury as well as the emotional trauma, but the emotional trauma must manifest itself with physical symptoms. The elements for a negligent infliction of emotional distress claim are:

  1. The defendant’s negligence must cause death or serious physical injury to another person;
  2. The bystander plaintiff must be in close proximity to the accident;
  3. The bystander plaintiff must be closely related to the accident victim;
  4. The bystander plaintiff must perceive the accident as it is happening; and
  5. The emotional distress must manifest itself in physical symptoms that can be diagnosed, and they must be established by expert testimony.

It is a difficult claim to prove, but there are definitely situations where it is an appropriate claim to bring. For example, when a parent witnesses a traumatic injury to a child or a person witnesses traumatic injury to their spouse, the psychological damage caused can be long-lasting and should be compensable.

What if the Family Member is Not Present? 

In 2007, in Doe v. Greenville County School District, the SC Supreme Court affirmed that negligent infliction of emotional distress claims can be brought only where the plaintiff was a bystander, or physically present when a family member is injured.

In Doe, the Court allowed a parent’s claims against the school district for negligent supervision, breach of fiduciary duty, and breach of an assumed duty in loco parentis based on a substitute teacher’s sexual relationship with their minor child, but rejected their claim for negligent infliction of emotional distress because the parents were not “bystanders” as contemplated in the Kinard decision (see above).

Were the parents injured? Absolutely. Was it the school district’s fault? If the school district is liable on the other claims, the parents’ emotional trauma was also the school district’s fault. But it’s not actionable – unfortunately, SC law does not provide a remedy for every wrong.

When Can a Bystander Sue?

If a bystander is injured by someone’s negligence, they can file suit just as if they were directly involved in the accident.

If a bystander witnesses an accident involving a close relative and suffers emotional trauma that manifests itself in physical symptoms, they might have a cause of action for negligent infliction of emotional distress.

If a bystander is injured, witnesses injuries to a close relative, and suffers emotional trauma that manifests itself in physical symptoms, they might have both a personal injury claim for their injuries and a claim for negligent infliction of emotional distress.

Does SC Recognize Intentional Infliction of Emotional Distress? 

In 1981, the SC Supreme Court also recognized the tort of intentional infliction of emotional distress, also called the tort of “outrage,” in Ford v. Hutson. The elements are different than those for negligent infliction of emotional distress – while there is no requirement of physical manifestation of symptoms, the defendant’s actions must be “extreme and outrageous,” “exceed all possible bounds of decency,” and must be “atrocious, and utterly intolerable:”

(1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct;

(2) the conduct was so “extreme and outrageous” so as to exceed “all possible bounds of decency” and must be regarded as “atrocious, and utterly intolerable in a civilized community;”

(3) the actions of the defendant caused the plaintiff’s emotional distress; and

(4) the emotional distress suffered by the plaintiff was “severe” such that “no reasonable man could be expected to endure it.”

In Hutson, the Court allowed the claim for intentional infliction of emotional distress to go forward where the defendant had purchased a house from the plaintiff, the house had defects, and defendant repeatedly harassed, yelled at, and threatened plaintiff about the repairs despite plaintiff’s offers to repurchase the home.

Sometime after 1972, plaintiff began experiencing depressive symptoms and her real estate business became less profitable. Shortly after the restaurant episode, she was examined by her physician and diagnosed to be suffering from headaches and a spastic colon. There was testimony that plaintiff, once an energetic, attractive person, no longer cared about herself or her business and had deteriorated physically and emotionally.

Late in 1976, plaintiff suffered an attack of shaking, nausea, cramps, and hysteria. She was hospitalized soon thereafter for several days and was diagnosed to be suffering from depression. In addition to continued suffering from headaches and spastic colon, she has experienced knotting of the intestinal tract, severe bouts of nausea, stiffness and numbness.

In 2007, in HanssonvScalise Builders of SC, the Supreme Court denied a claim of intentional infliction of emotional distress, stressing that courts must determine whether the conduct alleged is sufficiently “outrageous” and the distress caused is sufficiently “severe” – an imprecise standard that leaves much to the court’s interpretation…

…we further hold that after finding that reasonable minds could differ as to whether Petitioners’ alleged conduct was sufficiently “outrageous” to establish a claim for intentional infliction of emotional distress, the court of appeals erred by not proceeding with a similar inquiry into whether Hansson’s resulting emotional distress was sufficiently “severe.”

The Court intended to limit claims for intentional infliction of emotional distress “to prevent claims for intentional infliction of emotional distress from becoming ‘a panacea for wounded feelings rather than reprehensible conduct.’”

Hansson, who was married and presumably not gay, claimed that his coworkers “constantly derided him with callous and vulgar remarks and gestures related to homosexuality.” The Court found that the conduct was not sufficiently outrageous, and the distress was not sufficiently severe, where:

  • He testified that he lost sleep at night and had to see a dentist because he was grinding his teeth;
  • He did not receive any other medical or mental health treatment;
  • He did not lose any time at work;
  • The conduct did not affect his relationship with his wife or his ability to perform his job;
  • He testified that he was generally satisfied with his employment; and
  • On a few occasions, he reciprocated with his own sexually-oriented jokes.

Intentional infliction of emotional distress can be a difficult claim to prove – although it is a recognized tort in SC, the courts have been clear that it should only be brought in the most extreme cases.

SC Personal Injury Lawyers in Myrtle Beach

If you have been injured as a bystander to an accident, or if you have suffered emotional distress as a result of witnessing a loved one’s injuries, your Myrtle Beach personal injury attorney at Coastal Law will review your case, help you to determine whether you have a cause of action, and recover maximum damages whenever possible.

Schedule a free consultation to discuss the facts of your case by calling (843) 488-5000 or filling out our online form.

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