The infliction of emotional distress is a cause of action in tort that seeks damages for a person's mental anguish and suffering without any physical injury or harm. The infliction of the emotional distress may be intentional or it may be negligent. Traditionally, courts have not allowed an owner to recover damages for emotional distress in actions regarding construction defects. However, more and more courts are beginning to consider these damages in litigation involving construction defects.
Where owners have been awarded damages based on emotional distress, courts have found that there is a duty on the part of a contractor to refrain from intentionally or negligently inflicting serious mental distress upon the owner. The duty is only owed to an owner who could have been foreseeably injured by the contractor's actions. The owner must be judged according to the reasonable person standard. In other words, a reasonable person would have sustained mental distress as a result of the contractor's actions.
The elements for an action based on intentional infliction of emotional distress include outrageous conduct by a contractor; the contractor's intent to cause, or reckless disregard for the probability of causing, emotional distress; an owner's severe emotional distress; and the actual and proximate cause of the owner's emotional distress by the contractor's outrageous conduct.
Although an absence of a physical injury may no longer be a bar to recovery for damages for emotional distress, the physical injury may be used as evidence of the degree of an owner's emotional distress.
An action for intentional or negligent infliction of emotional distress for a construction defect is based upon an owner's mental anguish as a result of a contractor's breach of a duty to construct a home in workmanlike manner. The most common scenario is where the contractor's negligence creates a threat of physical injury based on an unsafe condition of the home or a structural defect in the home, which unsafe condition or structural defect could cause the home to collapse. The threat of the physical injury is what produces the owner's mental anguish and emotional distress.
Where a construction defect is a latent defect, that is, a defect that could not have been discovered upon a reasonable inspection, it is difficult to establish damages for emotional distress. If an owner did not discover the defect, the owner is not susceptible to emotional distress for something of which he or she was unaware. However, once the owner discovers the defect, the owner can be susceptible to emotional distress.
There is a trend in several states to award damages for emotional distress in cases involving construction defects. Courts in these states recognize an emotional attachment that a person may have in his or her home and the person's likelihood to sustain mental anguish and emotional distress as a result of his or her discovery of the defects. These types of damages are more likely to be awarded in cases where a contractor has refused to repair the defects or where the contractor could not successfully repair the defects because they were so serious.