Intentional torts - Infliction of mental distress

Learning Outcomes

This article explains intentional infliction of mental distress (IIED) for MBE purposes, including:

• Pinpointing and applying each element of IIED—extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress—in bar-style fact patterns
• Distinguishing IIED from assault, battery, defamation, and negligent infliction of emotional distress (NIED), and selecting the best answer choice where multiple torts appear plausible
• Evaluating when conduct crosses the “extreme and outrageous” threshold, with emphasis on abuse of power, repeated harassment, special relationships, and known vulnerabilities
• Determining when third parties and bystanders can recover, using the presence, relationship, and bodily-harm requirements frequently tested on the exam
• Assessing the role of recklessness, hypersensitive plaintiffs, privileges, and damages, including when punitive damages are available
• Applying First Amendment and public-figure limits to speech-based IIED claims so you can quickly eliminate distractor options
• Using structured issue-spotting steps to avoid common IIED traps, such as treating mere insults or short-lived embarrassment as legally sufficient severe distress

MBE Syllabus

For the MBE, you are required to understand intentional infliction of mental distress as a distinct intentional tort, with a focus on the following syllabus points:

• Identifying all elements of IIED and knowing how each must be proved
• Distinguishing IIED from assault, battery, and NIED, especially where there is no physical contact
• Understanding when ordinary insults are insufficient and when conduct crosses the “extreme and outrageous” threshold
• Recognizing the impact of special relationships (e.g., employer–employee, common carrier–passenger, common carrier–passenger) and known vulnerabilities (e.g., children, pregnant persons)
• Knowing when third parties and bystanders can recover for IIED, including requirements of presence, relationship, and physical signs of distress
• Understanding the role of recklessness in satisfying the intent requirement
• Applying constitutional limits on IIED claims based on speech, especially involving public figures and matters of public concern
• Knowing what damages are available and why proof of severe emotional distress is required

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an element of intentional infliction of mental distress?
   1. Extreme and outrageous conduct
   2. Intent or recklessness
   3. Physical injury
   4. Severe emotional distress
2. A defendant insults a customer in a shop, calling them “stupid” once, causing mild annoyance. Is the defendant liable for IIED?
   1. Yes, because the conduct was intentional
   2. Yes, because the customer was upset
   3. No, because the conduct was not extreme or outrageous
   4. No, unless the customer suffered physical harm
3. Which of the following best describes the required mental state for IIED?
   1. Negligence
   2. Intent or reckless disregard
   3. Strict liability
   4. Malice only
4. Can a bystander recover for IIED if they witness a close relative being intentionally harmed?
   1. No, never
   2. Yes, if present and the defendant knows of their presence
   3. Yes, if they later learn of the event
   4. Only if they suffer physical injury

Introduction

Intentional infliction of mental distress (usually called intentional infliction of emotional distress, or IIED) is a separate intentional tort from assault and battery. It protects individuals from serious emotional harm caused by another’s extreme and outrageous conduct, even when there is no physical contact and sometimes even when the plaintiff was not in immediate apprehension of harm at the time.

On the MBE, IIED appears frequently in fact patterns where:

• There is no physical contact or only minimal contact
• The defendant’s conduct is shocking, abusive, or sustained over time
• Assault or battery claims fail because an element (such as apprehension or contact) is missing, but the plaintiff later suffers serious emotional consequences

Key Term: Intentional Infliction of Mental Distress (IIED)
A tort imposing liability when a defendant intentionally or recklessly engages in extreme and outrageous conduct that causes a plaintiff to suffer severe emotional distress.

Key Term: Recklessness
Conscious disregard of a high degree of risk that emotional distress will result from one’s conduct. It is more than negligence but less than purposefully desiring the result.

IIED often overlaps factually with assault, battery, defamation, or NIED. On the MBE you must identify which claim (or combination of claims) is most likely to succeed and why. The examiners like to test IIED as a “backup” tort: assault or battery fails because of a missing element, but the same facts can still support IIED if the conduct and the harm are serious enough.

How IIED Differs from Assault, Battery, and NIED

It is useful early on to fix in mind how IIED is different from closely related torts:

• Assault:

  • Requires reasonable apprehension of an imminent harmful or offensive contact at the time.
  • No actual contact is needed, and emotional upset is not enough without contemporaneous apprehension.

• Battery:

  • Requires harmful or offensive contact with the plaintiff’s person (or something closely connected to it).
  • The plaintiff need not be aware at the time of the contact.

• IIED:

  • Does not require contact or apprehension at the time of the event.
  • The focus is on extreme and outrageous conduct plus severe emotional distress, even if the emotional impact occurs later.

• NIED (Negligent Infliction of Emotional Distress):

  • Based on negligence rather than intent or recklessness.
  • Usually requires the plaintiff to prove some physical symptoms of distress (e.g., palpitations, ulcers), unless a narrow exception applies (such as mishandling of a corpse).
  • The conduct need not be outrageous; the key is breach of a duty of care.

Because exam questions often mix these concepts, always ask:

• Is there intent or recklessness with respect to emotional distress?
• Is there contact (battery) or apprehension of imminent contact (assault)?
• Are we dealing with careless behavior (NIED) or deliberate/reckless behavior (IIED)?

If the defendant’s behavior is intentional or reckless and shockingly abusive, IIED should immediately be in your issue set.

Elements of IIED

To establish IIED, the plaintiff must prove:

1. Extreme and outrageous conduct by the defendant
2. Intent or recklessness with respect to causing emotional distress
3. Causation between the conduct and the plaintiff’s distress
4. Severe emotional distress actually suffered by the plaintiff

Each of these elements is separately tested on the MBE.

Extreme and Outrageous Conduct

Key Term: Extreme and Outrageous Conduct
Conduct that exceeds all bounds of decency tolerated in a civilized society; it is more than mere insults, indignities, or annoyances.

Courts reserve IIED for truly egregious behavior. The Restatement speaks of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Ordinary rudeness is not enough.

Factors that make conduct more likely to be “extreme and outrageous” include:

• Abuse of power or authority:
  • Example: A supervisor, police officer, landlord, or debt collector using their position to threaten, humiliate, or coerce someone in a vulnerable position (e.g., threatening baseless criminal charges to force sexual favors).
• Targeting known vulnerabilities:
  • Example: Deliberately taunting a person about a severe phobia, a recent bereavement, pregnancy, or serious illness; threatening to disclose intensely private facts to cause humiliation.
• Repetition or pattern of harassment:
  • A single nasty comment is rarely enough. A sustained campaign of bullying, stalking, or harassment, especially in the workplace or school, often is.
• Exposure in especially sensitive settings:
  • Example: Outrageous behavior toward a patient in a hospital, a passenger in transit, a child at school, or a grieving family at a funeral.

Classic scenarios that typically satisfy the outrageousness requirement include:

• Falsely telling a parent that a child has been killed
• Mishandling a corpse or giving a mutilated body to a family without warning
• Intentionally fabricating a sexually transmitted disease diagnosis as a “joke”
• Repeatedly using racial epithets and threats to terrorize a tenant into moving out

Conduct that is rude, insulting, or even intentionally hurtful will usually not be enough unless it is combined with one or more of these aggravating factors.

Intent or Recklessness

Key Term: Transferred Intent (IIED)
Limited doctrine under which a defendant who directs extreme and outrageous conduct at one person may be liable for IIED to another person who suffers severe distress, but only where bystander requirements (presence, relationship, and in some cases physical harm) are satisfied.

The defendant must either:

• Intend to cause severe emotional distress; or
• Act with reckless disregard as to whether such distress will result.

Recklessness is sufficient: the defendant need not desire the distress, as long as they consciously disregard a substantial risk that serious emotional harm will occur.

Points to remember for the exam:

• Negligence is not enough. Careless behavior, however harmful, is analyzed under NIED or general negligence, not IIED.
• The defendant does not have to intend distress to this particular plaintiff; it is enough that distress to someone like the plaintiff was a highly probable result.
• A defendant who acts with malicious or spiteful motives is more likely to be found to have the requisite intent, but “malice” is not an independent element.

Transferred intent plays only a limited role in IIED. Unlike battery or assault, generic “I meant to hit X but hit Y” transferred intent does not automatically create IIED liability. Instead, liability for distress to third parties is governed by the bystander / third-party IIED rules discussed below.

Causation

The defendant’s conduct must be a cause in fact of the plaintiff’s distress. On the bar exam, causation issues often arise where:

• The plaintiff already had pre-existing anxiety or depression; or
• Multiple stressors exist (e.g., divorce, job loss, and the defendant’s conduct).

If the defendant’s extreme and outrageous conduct was a substantial factor in producing the plaintiff’s severe emotional distress, causation is satisfied even if the plaintiff was particularly vulnerable.

The “eggshell skull” principle applies in emotional-distress form: the defendant takes the plaintiff as they find them. A defendant who knowingly torments a particularly fragile plaintiff cannot defend by saying a more robust person would have coped better.

Severe Emotional Distress

Key Term: Severe Emotional Distress
Emotional suffering that is serious, enduring, and of a magnitude no reasonable person should be expected to endure; trivial upset, anger, or transient embarrassment is insufficient.

Courts look for:

• Duration and intensity of the distress
  • Ongoing nightmares, intrusive thoughts, persistent fear, or grief lasting months or years.
• Interference with daily life:
  • Inability to sleep, work, or socialize; withdrawing from normal activities; deterioration in performance at work or school.
• Often, but not always, objective evidence such as:
  • Seeing a therapist or psychiatrist
  • Taking medication for anxiety or depression
  • Physical symptoms such as headaches, nausea, ulcers, panic attacks, or heart palpitations

Physical injury is not required to recover for direct IIED. However:

• In some bystander situations (see below), physical signs of distress or bodily harm are required.
• In practice, many successful IIED claims will include some physical or medical evidence simply because it is persuasive proof that the distress is truly severe.

On MBE fact patterns, words like “annoyed,” “upset,” “angry,” or “embarrassed” usually signal that the distress is not severe enough. Look instead for language indicating long-term psychological impact, medical treatment, or inability to function.

Special Relationships and Known Sensitivities

Conduct that might not be outrageous in ordinary circumstances can become so when:

• The defendant is in a position of authority or trust over the plaintiff:
  • Employer–employee
  • Landlord–tenant
  • Common carrier–passenger
  • Innkeeper–guest
  • Teacher–student
  • Medical professional–patient
  • Jailor–prisoner
• The defendant knows the plaintiff is especially vulnerable, for example:
  • Young children
  • Elderly persons
  • Pregnant persons
  • People with known severe mental or physical conditions

In these contexts, aggressive threats, humiliating treatment, or calculated emotional cruelty are more readily found to be “extreme and outrageous.” A joke that would be tolerable among peers can become outrageous when delivered by a supervisor with power to fire, or by a doctor during a medical procedure.

For the MBE, when you see an employer, common carrier, or medical provider intentionally humiliating or terrorizing someone under their care or control, your “outrageousness” antenna should go up.

Bystander and Third-Party IIED

Many MBE questions involve extreme conduct directed at one person but emotional distress suffered by someone else. The rules differ depending on the relationship and circumstances.

Key Term: Immediate Family Member (for IIED)
A close relative such as a spouse, parent, child, or similarly close relation recognized by law, present when extreme and outrageous conduct is directed at a victim.

Key Term: Bystander IIED
A claim by a person who suffers severe emotional distress from witnessing extreme and outrageous conduct directed at another, under specific presence and relationship requirements.

The Restatement and most jurisdictions follow this structure:

1. Immediate Family Members

A defendant is liable for IIED to an immediate family member if:

• The defendant intentionally or recklessly engages in extreme and outrageous conduct toward a victim
• The family member is present at the time and perceives the conduct
• The family member suffers severe emotional distress

No physical injury to the bystander is required.

“Immediate family” is sometimes broader than just parent, spouse, and child—it can include siblings or other relations living in the same household—so pay attention to how closely related the exam fact pattern makes the parties.

2. Other Bystanders

A non–family-member bystander can recover for IIED if:

• The bystander is present, perceives the conduct, and suffers severe emotional distress; and
• The distress results in bodily harm (e.g., fainting, heart attack, miscarriage, or other physical manifestations)

This bodily-harm requirement is the key difference between immediate family members and unrelated bystanders. On the MBE, if a non-relative bystander suffers only mild insomnia or sadness, recovery is unlikely; if they suffer a heart attack or miscarriage, the bodily-harm requirement is satisfied.

3. Conduct Toward One Person, Distress in Another

If the defendant commits another intentional tort (such as assault or battery) against a victim in the presence of a third person, IIED liability to that third person is still governed by the same bystander rules (presence, relationship, and in some cases physical harm). Generic transferred intent does not bypass these requirements.

4. Presence Requirement

“Presence” normally means the plaintiff is physically near enough to see or hear the outrageous conduct as it happens. Learning of the event later, even within minutes, is generally not enough for bystander IIED, although it might support other claims (such as NIED in some jurisdictions).

Damages

IIED is not actionable without actual harm. The plaintiff must show:

• Actual severe emotional distress; nominal damages are not available
• No requirement of physical injury for direct victims
• For non–family-member bystanders, bodily harm must be shown

Once liability is established, the plaintiff may recover:

• Damages for emotional suffering (often the main component)
• Damages for associated physical harm (e.g., stress-related illness, migraines, ulcers)
• In many jurisdictions, punitive damages where the defendant’s conduct was particularly outrageous or malicious

Because punitive damages are designed to punish and deter extremely bad behavior, they are common in IIED cases when the conduct is calculated, repeated, or sadistic.

Limitations and Defenses

Key limitations that frequently appear on the MBE:

• Mere insults, threats, or annoyances are not enough:
  • Single episodes of name-calling, sarcasm, or rude customer service typically fail, even if the plaintiff is offended.
  • Repeated verbal abuse combined with threats or humiliation in a sensitive context can cross the line.
• Hypersensitive plaintiffs:
  • If the plaintiff is unusually fragile, the defendant is liable only if they knew of that sensitivity and exploited it or acted in reckless disregard of it.
  • If the defendant had no reason to know the plaintiff was unusually sensitive, trivial conduct that just happens to upset this particular plaintiff is not enough.
• Negligent conduct:
  • Carelessness, however harmful, supports NIED or negligence, not IIED. Examine whether the facts show deliberate or reckless cruelty, not mere carelessness.
• Privileges and defenses:
  • Defenses that apply to other intentional torts (e.g., consent, self-defense, defense of property) can also be relevant to IIED where the conduct in question is privileged. However, even privileged physical conduct might still become outrageous if carried out in an unnecessarily degrading or humiliating way.

Constitutional Limits for Speech-Based IIED Claims

Key Term: Public Figure (for IIED)
A person who has achieved pervasive fame or voluntarily injected themselves into a public controversy, such that they must satisfy the “actual malice” standard in certain speech-based IIED claims.

When the defendant’s conduct consists of speech about a public figure or public official on a matter of public concern, the First Amendment imposes additional hurdles. To recover for IIED in this context, the plaintiff must show:

• A false statement of fact, not just an opinion, parody, or rhetorical hyperbole; and
• Actual malice—knowledge that the statement was false, or reckless disregard for whether it was true or false.

This is to prevent IIED from becoming an end-run around constitutional defamation protections. For example:

• A magazine parody of a famous religious leader that no reasonable person would understand as stating actual facts about the leader is constitutionally protected; IIED cannot be used to impose liability for hurt feelings alone.
• In Snyder v. Phelps, the Supreme Court held that even deeply offensive picketing near a soldier’s funeral, on public land and addressing matters of public policy, was protected speech. The private plaintiff could not recover for IIED.

The exam pattern to watch for is:

• Speech (signs, publications, broadcast, online posts)
• About a public figure or public official
• Addressing political, social, or religious issues

In such a case, ask:

• Is the plaintiff a public figure?
• Is the topic one of public concern?
• Is there proof of a false statement of fact and actual malice?

If not, an IIED claim based solely on the content of the speech will usually fail.

Worked Example 1.1

A supervisor repeatedly humiliates an employee in front of colleagues, calling them worthless, threatening to ruin their career, and making degrading comments about their mental health over several months. The employee develops severe anxiety, is prescribed medication, and cannot continue working.

Answer:
The repeated, targeted humiliation in an employment relationship, coupled with threats to the employee’s livelihood and known vulnerabilities, is extreme and outrageous. The supervisor at least recklessly disregarded the risk of serious emotional harm. The conduct caused the employee’s diagnosed anxiety and inability to work, which qualifies as severe emotional distress. The elements of IIED are satisfied.

Worked Example 1.2

A prankster calls a parent, falsely claiming their child has died in an accident. The prankster thinks this will be “dark humor.” The parent believes the statement, suffers shock, and later experiences lasting emotional trauma and insomnia.

Answer:
Falsely announcing a child’s death to the parent is classic extreme and outrageous conduct. The prankster acted at least recklessly with respect to the risk of emotional distress. The parent’s shock and ongoing trauma amount to severe emotional distress. IIED liability is likely.

Worked Example 1.3

A defendant, intending to frighten a clerk, goes to a toy store. When the clerk is alone, the defendant waves a real knife and shouts, “I’m going to make sure you don’t molest any more children!” The clerk assumes it is a toy knife from the shelves and thinks it is a tasteless joke; he feels no fear and tells the defendant to leave. Later, he learns the knife was real and that he had been in actual danger. As he thinks about what happened, he develops severe anxiety and becomes ill, missing work.

Answer:
There is likely no assault, because at the time of the incident the clerk did not have a reasonable apprehension of imminent harmful contact—he believed the knife was a toy and laughed it off. However, the defendant’s accusation of child molestation and brandishing a real knife in a store is extreme and outrageous conduct, undertaken with intent to cause distress. The clerk later suffers severe anxiety and illness as a result of realizing the danger he was in. IIED offers his best chance of recovery.

Worked Example 1.4

A mother and a friend are at a park. In front of them, a driver intentionally speeds his car toward the mother’s child to scare him, stopping inches away. The mother sees this and screams. She develops PTSD and panic attacks. The friend present at the scene, who is not related to the child, also experiences distress but only minor sleep issues.

Answer:
The driver’s conduct is extreme and outrageous. The child may have claims for assault and possibly IIED. The mother, an immediate family member present and witnessing the conduct, can recover for IIED without proving physical injury, because she suffers severe emotional distress. The friend is a non–family-member bystander; to recover for IIED, she must show severe emotional distress resulting in bodily harm. Mild sleep disturbance likely falls short. The mother recovers; the friend likely does not.

Worked Example 1.5

A famous politician is the subject of a nationally broadcast skit. The comedian portrays the politician as a drunk and a crook, showing a fake video of the politician stumbling out of a bar and stuffing cash into their pockets. The skit is clearly labeled satire. The politician sues for IIED, claiming humiliation and sleeplessness.

Answer:
The politician is a public figure, and the skit addresses issues of public concern (the politician’s honesty and fitness for office). The skit is labeled and presented as satire, not as a factual news report. There is no actionable false statement of fact made with actual malice; reasonable viewers would understand it as parody. Under First Amendment principles, IIED cannot be used to punish this speech. The claim should fail.

Worked Example 1.6

A landlord knows that a tenant has a serious heart condition and crippling anxiety. To pressure the tenant into moving out so he can raise the rent, the landlord begins entering the apartment unannounced at night, standing over the tenant’s bed, and whispering threats about “accidents” that might happen in the building. After several episodes, the tenant has a heart attack and develops severe depression.

Answer:
The landlord is abusing a position of power in a housing relationship and targeting known vulnerabilities, including a heart condition and anxiety. The repeated nighttime intrusions and threats are extreme and outrageous, and at least reckless with respect to the risk of serious emotional and physical harm. The tenant suffers severe emotional distress and bodily harm (the heart attack). All elements of IIED are likely satisfied, and punitive damages may be appropriate.

Distinguishing IIED from Other Torts on the MBE

IIED is often tested alongside assault, battery, false imprisonment, defamation, and NIED. To choose correctly among competing answer choices:

• When assault fails but IIED succeeds:

  • Assault requires reasonable apprehension of imminent harmful or offensive contact. If the plaintiff is unaware at the time (as in Worked Example 1.3), or the threat is of future harm (“I’ll get you next week”), assault fails, but IIED may still apply if the conduct is outrageous and later causes severe distress.

• When battery covers the conduct:

  • If the defendant intentionally touches the plaintiff in a harmful or offensive way, battery is usually the best intentional tort answer. IIED can be pleaded in the alternative, but on a multiple-choice question you usually choose the most direct tort. Only when the contact is minimal but the emotional abuse is extreme might IIED be the better fit.

• When NIED, not IIED, applies:

  • If the defendant is merely careless (e.g., a driver who accidentally hits a pedestrian), and the plaintiff’s distress arises from witnessing negligence, think NIED rather than IIED. Look for words like “failed to notice,” “forgot,” “did not realize,” or “should have known,” which indicate negligence, not intent.

• When defamation is the better claim:

  • If the main harm is to reputation from false statements about the plaintiff, defamation is usually primary. IIED may be a secondary claim if the method of publication is particularly outrageous, but if the question asks for the plaintiff’s “best” or “primary” claim, defamation often wins.

On exam day, a structured approach helps:

• Identify the conduct (contact, threats, speech, negligence?).
• Identify the mental state (intent, recklessness, negligence?).
• Identify the harm (physical injury, reputational harm, severe distress?).

If the conduct is deliberate and outrageous, and the harm is emotional rather than physical or reputational, IIED is usually the right choice.

Exam Warning

The MBE often includes:

• Single insults, racial slurs, or rude customer-service interactions
• Overstatements of distress (e.g., “very upset,” “embarrassed,” “angry”)

Remember: IIED requires extreme and outrageous conduct and severe emotional distress. If the fact pattern looks like ordinary rudeness or short-lived upset, IIED is usually wrong, even if the defendant acted intentionally.

Revision Tip

When evaluating IIED in an exam question, move methodically:

• Is the conduct truly extreme and outrageous, considering context, relationship, and repetition?
• Did the defendant act with intent or recklessness, not mere negligence?
• Is there a clear causal link between the conduct and the distress?
• Is the distress severe, and is physical harm required (as with some bystanders)?

If any element is missing, IIED fails—even if the defendant’s behavior seems morally blameworthy.

Summary

IIED is a distinct intentional tort that fills gaps left by assault, battery, and negligence when a defendant’s conduct is emotionally—but not necessarily physically—harmful. To recover, a plaintiff must show extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress. Ordinary insults and short-lived upset do not qualify. Special relationships, known sensitivities, and bystander rules can expand liability, while constitutional protections limit IIED claims based on speech about public figures or public issues. On the MBE, IIED is often the correct answer when the facts are shocking, the harm is primarily emotional, and other intentional torts fail on a technical element.

Key Point Checklist

This article has covered the following key knowledge points:

• IIED requires four elements: extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress
• Extreme and outrageous conduct goes beyond ordinary insults; factors include abuse of power, repetition, sensitive settings, and targeting known vulnerabilities
• Intent may be satisfied by purpose or recklessness, but not by mere negligence
• Transferred intent is limited; third-party recovery is governed by bystander IIED rules, not generic transferred intent
• Immediate family members present and witnessing the conduct can recover without proving physical injury; unrelated bystanders must show bodily harm
• Special relationships (e.g., employer–employee, common carrier–passenger, medical professional–patient) and known sensitivities make outrageousness easier to establish
• Actual damages in the form of severe emotional distress are required; nominal damages are not available, and physical injury is generally unnecessary except for some bystanders
• Speech-based IIED claims involving public figures or matters of public concern require proof of a false statement of fact and actual malice, and may fail if the speech is clearly parody or opinion
• IIED often succeeds where assault fails (no contemporaneous apprehension) or where there is no physical contact, making it a frequent correct answer on the MBE

Key Terms and Concepts

• Intentional Infliction of Mental Distress (IIED)
• Extreme and Outrageous Conduct
• Severe Emotional Distress
• Recklessness
• Transferred Intent (IIED)
• Bystander IIED
• Immediate Family Member (for IIED)
• Public Figure (for IIED)