Volume 4 E-bulletin

E-Bulletin

PROOF OF EMOTIONAL HARM

Claims of emotional distress have been viewed with faint suspicion by the courts, since such claims are often vague, highly subjective, and not readily discernible by anyone other than the person who allegedly suffered such distress. Generally, such a claim requires a Plaintiff to provide support in the form of expert testimony and a demonstration that the severe and substantial emotional distress suffered has resulted in objective physiological or diagnosable psychological manifestations.

However, the Appellate Division, in Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., Docket No. A-0122-01T3 (decided May 16, 2003), noted that New Jersey's Law Against Discrimination was meant as a means of protecting and advancing a person's constitutionally-afforded civil rights. Among those civil rights is included protection from humiliation and indignity caused by discriminatory conduct.

Accordingly, in an opinion written by Judge Sylvia Pressler, the Appellate Division held that for cases premised upon Law Against Discrimination ("L.A.D.") claims, "[e]motional distress suffered [by humiliation, embarrassment, and indignity] by the victim of proscribed discrimination is compensable without corroborative proof [from an expert witness], permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial."

What does this mean? It would appear that, now, a Plaintiff in a L.A.D. claim no longer must provide expert testimony that he or she has suffered emotional distress as the result of allegedly discriminatory conduct. In addition, that emotional distress need not be permanent, as even transitory emotional distress may be compensable. Furthermore, the emotional distress need not manifest itself in physical and/or psychological symptoms.

Moreover, it also appears that there need not even be a showing that the emotional distress was severe or substantial because, unlike emotional distress arising from an ordinary tort claim, emotional distress in a L.A.D. claim is in "a category distinct and separate from claims of negligent or intentional infliction of emotional distress in other contexts."

The amount of damages must be determined by the fact-finder, taking into consideration factors such as the duration, the public nature, and the content of the discriminatory conduct, and may be enhanced by "such additional proofs of indicia of suffering as plaintiff may adduce."

Although, as the Appellate Division noted, the amount of damages for non-severe and uncorroborated emotional distress might only be nominal, insurance carriers should be aware that compensable emotional stress in the tort context, contrary to the bodily-injury coverage context, need not be accompanied by physical manifestations. Of course, accompanying physical manifestations are relevant both in proving that the emotional distress was severe and substantial and in assessing the quantum of damages. The Court notes that there may be some confusion with respect to the nature of compensable emotional distress in the tort context. For coverage purposes, emotional distress damages are included in bodily injury coverage only if the emotional injury is accompanied by physical manifestations. Schmidt v. Smith, 155 N.J. 44, 52 (1998); Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165,179 (1992). (Emphasis added).