As personal injury attorneys, our firm speaks with individuals every day who have experienced upsetting, unfair, or frightened interactions. In fact, a common inquiry involves a potential client who wants to sue someone purely for intentional infliction of emotional distress. This often occurs following a heated verbal altercation.
Recently, a woman contacted our office seeking legal representation. She explained that while walking to her vehicle in a retail parking lot with her young child, she was distracted by her child. That distraction caused her shopping cart to drift toward a parked pickup truck. She had no intention of striking or damaging the truck. However, the owner of the vehicle reacted with immediate aggression. He exited his truck, yelled at her and her child, made hostile accusations, and left her feeling shaken and humiliated. She managed to snap a photo of his license plate. She then reached out to us, hoping to file a lawsuit against the driver for intentional infliction of emotional distress.
While the driver’s behavior was undeniably rude, hostile, and unacceptable, we had to decline the case. To understand why, it is necessary to look at how New York law defines emotional distress. There are also practical economic realities of civil litigation.
What Constitutes Intentional Infliction of Emotional Distress?
Under New York Law, establishing a civil claim for Intentional Infliction of Emotional Distress requires a plaintiff to prove four distinct elements:
- Extreme and outrageous conduct;
- Intent to cause, or disregard of a substantial probability of causing, severe emotional distress;
- A causal connection between the conduct and injury; and
- Severe emotional distress.
The legal standard for the first element—extreme and outrageous conduct—is extraordinarily high. The law explicitly distinguishes genuine legal outrage from everyday bad behavior. Mere insults, indignities, threats, annoyances, or other trivialities are not enough to form a valid claim. 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004); Bell v Slepakoff, 224 AD2d 567, 639 NYS2d 406 (2d Dept 1996).
Specific Examples
- Racial Epithets: A student used a racial epithet in a classroom. Thestudent and her parents sued the school and the offending student. The Court dismissed the case because the conduct cannot be characterized as “utterly reprehensible.” Graham ex rel.Graham v Guilderland Cent. School Dist., 256 AD2d 863, 681 NYS2d831 (3d Dept 1998).
- Verbal Abuse and Screaming: In Albert v. Solimon, 252 AD2d 139, 684 NYS2d 375 (4th Dept. 1998), aff’d, 94 N.Y.2d 771, 721 N.E.2d 17 (1999), a physician screaming at the top of his voice at a patient in an examination room due to the presence of a service dog was held not to be sufficiently outrageous to sustain a lawsuit.
- Neighbor Disputes and Slurs: In Ajie Chen v. DeLiso, 169 AD3d 761, 91 NYS3d 895 (2d Dept. 2019), allegations that neighbors yelled obscenities and slurs at the plaintiffs failed to meet the threshold of outrageousness required by law.
While a motorist yelling aggressively at a mother and child in a parking lot is deeply unpleasant, New York courts consistently hold that brief, isolated verbal outbursts—even those involving shouting or mild threats—fall under the category of non-actionable insults, indignities, and annoyances. Courts set this bar high to prevent everyday interpersonal conflicts from flooding the legal system.
Insurance Coverage Limitations
In addition to proving a case against the rude truck driver, there is a fundamental insurance barrier. Personal injury lawyers typically handle cases where an insurance policy is available to pay damages or cover a settlement.
However, standard liability insurance policies are designed to cover accidents and negligence. They do not cover intentional wrongful acts.
- Intentional Conduct Exclusions: Insurance policies routinely contain express exclusions for damages resulting from intentional or reckless misconduct. Because intentional infliction of emotional distress inherently requires intent or extreme recklessness to inflict harm, an insurer will disclaim coverage for the claim.
- Lack of Bodily Injury: Auto and general liability insurance policies generally require “bodily injury” (physical harm) to trigger coverage. Purely emotional injury resulting from a verbal confrontation without physical contact or physical injury rarely qualifies for coverage under standard auto policies.
Without an insurance company involved to cover the claim, any potential recovery would have to come out of the individual driver’s personal assets.
Financial Realities: Why Contingent Fee Representation Isn’t Feasible
In personal injury cases, attorneys almost universally work on a contingent fee basis. This means the lawyer pays upfront expenses and receives a percentage of the final recovery only if the case is won.
When a case lacks insurance coverage, virtually no law firm can take it on contingency.
If a client chooses to pursue a lawsuit against an uninsured individual for intentional conduct, the client would have to pay the attorney an hourly retainer fee plus out-of-pocket court costs and expenses. Litigating a civil suit through pleadings, depositions, motions, and trial can easily cost tens of thousands of dollars in legal fees.
The Collection Nightmare and Bankruptcy Risk
Even if a client was willing to pay out of pocket to hire an attorney, and even if they managed to win a judgment in court against the defendant, winning the judgment is only half the battle. Collecting a judgment is entirely different from obtaining one.
- Years of Litigation: Enforcing a personal judgment against an individual’s personal wages or assets can take years of complex post-judgment enforcement proceedings.
- The Bankruptcy Trap: Even if a plaintiff “hits the lottery” and secures a massive monetary judgment against an individual, the defendant can simply file for personal bankruptcy protection. Under federal bankruptcy law, civil judgments arising from uncollected debts or non-willful/ordinary tort claims can often be completely discharged (wiped out), leaving the plaintiff with no financial recovery despite years of effort and vast expenses. (Under 11 U.S.C. § 523(a)(6), intentional tort judgments can theoretically be deemed non-dischargeable if proven “willful and malicious” in an adversary proceeding. Clarifying that particular ruling requires a separate, expensive bankruptcy lawsuit. It further reinforces why taking the case is impractical.)
Conclusion
Our law firm deeply empathizes with anyone who encounters aggressive, unreasonable individuals in public spaces. However, the legal civil justice system is designed to compensate specific, legally recognized harms—not to punish every instance of bad manners or verbal abuse.
Because an isolated parking lot dispute does not meet the strict threshold for intentional infliction of emotional distress under New York law, and because obtaining a recovery would be difficult, taking such a case to court is almost never financially or legally viable for the client.
By James Santner, Esq.
If you have questions regarding a personal injury matter, contact our office for a free consultation. We do not get paid unless you recover damages.