Can You Sue a Bully?

In the immediate aftermath of the 2016 presidential election, there has been a noticeable uptick in bullying across the country. A lot of people dismiss this as “being words” but that doesn’t mean that if you are subject of bullying, that you don’t have legal recourse.

Intentional infliction of emotional distress is a relatively new tort (it was created about a century ago). Traditionally, under the law you cannot recover for emotional pain and suffering unless there is an underlying physical injury that occurred. This could be assault or battery, or any other tort. However, this obviously left a huge opening for improper contact that was not physical and did not fall into the realm of assault. As a result, the tort of intentional infliction of emotional distress was created (“IIED”).

IIED is when:

1. The defendant’s conduct was outrageous (meaning beyond the possible bounds of decency);
2. Intended to cause emotional distress or with reckless disregard of the probability that the plaintiff would suffer severe emotional distress, with the plaintiff present;
3. The plaintiff suffered severe emotional distress; and
4. The defendant’s conduct was a substantial factor in causing that severe emotional distress.

As you can see, there is some pretty strong evidentiary language in there, namely the fact that the distress must be severe and the defendant’s conduct must be outrageous.

So, let’s take a case of bullying where a group of individuals goes into a convenience store and tells the manager that he “better get out before he is deported” and called “Bin Laden” before the group threatens the manager that they will “come back to kill him and burn his store.” In this case, it seems like the conduct would be considered outrageous because it is well beyond the bounds of human decency to threaten someone’s life and violently destroy their property.

The next thing you would have to consider is what emotional distress did the manager experience. Was he just annoyed? If so, then that is not enough to recover under IIED. Did he have an overpowering and unshakeable sense of dread that he will be targeted by the group and thereby suffer from emotional distraught? If so, then that is likely enough to be considered severe emotional distress.

Now, take the same example, but with no threats, just the telling the manager that he should leave the country before he gets deported and called Bin Laden. Would that conduct rise to the level of outrageousness? That gets a little murky, as it seems to be closer to allowable name calling then out and out outrageous conduct. Is it acceptable conduct in a civil society? No. Is it beyond all bounds of decency? That is a tougher question.

The reason why IIED requires such terrible behavior is because you have a first amendment right to free speech, and successfully suing someone for the words they use is a restriction on their right to free speech. Therefore, in order to satisfy constitutionally mandated government restraint, the behavior has to be so bad that it falls out of constitutional protection.

That is why you cannot succeed in a case if someone calls you something as mundane, but possibly extremely hurtful as “jerkface” or any number of other names. It may strike you to your very core, but they are entitled to their speech protections.

Most IIED cases are going to be evaluated on a case by case basis so if you think you have an IIED claim, you should contact an attorney immediately.