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Florida Second DCA reverses judgment awarding damages for intentional infliction of emotional distress, finding insufficient evidence of emotional distress

On June 27, 2018, in Kim v. Chang, No. 2D16-4063, the Florida Second DCA reversed a judgment for the appellee (the counterclaiming defendant in the trial court) on a count alleging intentional infliction of emotional distress, concluding that the appellee failed to introduce legally sufficient evidence that she suffered emotional distress.

The Second DCA noted that the Florida Supreme Court first recognized the tort of intentional infliction of emotional distress in Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985) and in doing so adopted section 46 of the Restatement (Second) of Torts (Am. Law Inst. 1965), which states that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." The Court quoted the Fourth DCA’s decision in Kraeer Funeral Homes, Inc. v. Noble, 521 So. 2d 324, 325 (Fla. 4th DCA 1988) regarding the definition of severe emotional distress: "severe emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure it." The Florida Standard Jury Instruction on this issue, 410.5, similarly states: "[e]motional distress is severe when it is of such intensity or duration that no ordinary person should be expected to endure it."

The Second DCA concluded that both a subjective and an objective question must be answered. The subjective question is whether the plaintiff in fact suffered emotional distress as a consequence of whatever the defendant did. As explained above, The objective question is whether the emotional distress the plaintiff suffered was so intense or so long-lasting that no reasonable person should be expected to endure it. The Court pointed out that the appellee was never asked and never said how the appellant’s conduct made her feel, how long the incident affected her, whether the incident left her emotionally unable to do or enjoy things she had done or enjoyed before, whether she had any psychological or physiological problems or symptoms (anxiety, depression, stress, etc.) as a result of what the appellant did, whether she sought professional help, or anything else that might have enabled a jury to make a reasonable inference that the appellee’s claimed emotional distress was severe in the sense the law requires.