By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Elder Abuse Attorney

In Part 1 of this series I introduced you to a new client whom we are calling “Jr”, as well as his stepson “CK”. CK moved his mother (Jr’s wife) from Florida to New Jersey without notice or permission from Jr. In this post we will discuss whether Jr has a case or not.

Jr’s best theory to recover is the intentional infliction of emotional distress. The cause of action of intentional infliction of emotional distress has been analyzed by the New Jersey Supreme Court in Buckley v. Trenton Savings Fund Society, 111 N.J. 355, 366 (1988). The court establishes the following elements for this cause of action:

  1. Intentional and outrageous conduct by the Defendant who must intend both to do the act and to produce the emotional distress. Liability will also attach when the Defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.
  2. The Defendant’s conduct must be extreme and outrageous. It must be “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.”
  3. The Defendant’s actions must have been the proximate cause of the Plaintiff’s emotional distress.
  4. The emotional distress suffered by the Plaintiff must be so severe that no reasonable man could be expected to endure it. “Severe emotional distress refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.”

The Court has an “elevated threshold for liability and damages” to prove this cause of action, requiring the actions to be “sufficiently palpable, sever and enduring to justify the imposition of liability and award of compensatory damages.”

One of the biggest issues courts have wrestled with is the level of proof necessary to establish. “In order to be actionable, the claimed emotional distress must be sufficiently substantial to result in physical illness or serious psychological sequelae.”  “Aggravation, annoyance, and frustration, however real and justified, constitute unfortunate products of daily living. Damages for idiosyncratic psychiatric reactions should therefore not be permitted.” There must be a showing of “medical evidence establishing substantial bodily injury or severe and demonstrable psychiatric sequelae proximately caused by the tortfeasor’s misconduct.” When it comes to the causation issue, it has been held that to prove pain and suffering occurred in a standard automobile negligence case, “where much of the claim of pain and suffering for three years after the accident is subjective and not obviously related to an identifiable injury, expert testimony was required to prove causation.”

In the context of whether this tort applies to the breakdown of family and inter-spouse litigation, the issue a court would review is whether this claim resembles more of an intentional infliction of emotional distress or an alienation of affections claim, specifically de-recognized as a viable cause of action per N.J.S.A. 2A:23-1. “At common law, an action for ‘alienation of affections’ was for loss of consortium, i.e., for a ‘loss of the marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away’ from the existing marriage.”

So, in a case where a husband sues the wife and her paramour “for emotional distress resulting from the dissolution of his relationship with children he raised as his own” and the splintered relationship he now has with his alleged children, the court has held that action to be viable.

However, the Appellate Division refused to extend this view to a lawsuit by a husband against his wife for the emotional distress he felt when he found out he was not the biological father of his child, as that more resembled an alienation of affections claim and not an infliction of emotional distress.

In our 3rd and final post I’ll conclude our discussion of this topic.

To discuss your NJ Elder Abuse matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.