Employment Law III, Emotional Distress, Respondeat Superior And More…

November 22, 2014

Employment Law III, Emotional Distress, Respondeat Superior And More…


To establish a cause of action for intentional infliction of emotional distress, a plaintiff must show: (1) intent to commit the act and the emotional distress resulting therefrom; (2) conduct that is extreme and outrageous; (3) proximate cause; and (4) emotional distress that is “so severe that no reasonable man could be expected to endure it.” Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 366 (1988). The defendant “must intend both to do the act and to produce emotional distress … [or act] recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.” Id. Conduct that is actionable is “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 tolerable in a civilized community.” Id.

It is for the court to decide in the first instance whether the emotional distress alleged is sufficiently severe. It is then for the jury to decide whether the distress alleged and found sufficient has in fact been proven to have occurred. Buckley at 367.


To establish a claim for negligent infliction of emotional distress, a plaintiff must show: (1) that defendant had a legal duty of care to plaintiff; (2) that the duty was breached; (3) that plaintiff suffered genuine and substantial emotional distress; and (4) that defendants’ negligence was the proximate cause of that distress. See Decker v. The Princeton Packet, 116 N.J. 418, 429 (1989). It must have been reasonably foreseeable that the tortuous conduct alleged would cause genuine and substantial emotional distress or mental harm to the average person. Id. at 430.

The test whether the distress is “truly genuine and substantial” is the same as that employed with respect to the intentional infliction of emotional distress. Plaintiff submits that he has established that Defendants’ actions constituted a breach of their duty to Plaintiff as his employer. Moreover, the hostile environment and adverse employment action as a result of his protected activities and health issues were the foreseeable cause of Plaintiff’s distress.


An employee asserting a public policy claim bears the burden of identifying the clear mandate of public policy relied on, Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 73 (1980), as well as proving that the protected activity he engaged in was the actual cause of his discharge or other adverse employment action. House v. Carter-Wallace, Inc., 232 N.J.Super. 42, 54 (App. Div.), certif. den. 117 N.J. 154 (1989).

Sources of public policy include the federal and state constitutions, statutes, regulations, common law, judicial decisions, and codes of ethics. MacDougall v. Weichert, 144 N.J. 380, 391 (1996).


An employer may be held responsible for the torts of its employees under the doctrine of respondeat superior only when that employee is acting within the scope of his employment. DiCosala v. Kay, 91 N.J. 159, 168-69 (1982). To be acting within the scope of employment, the employee must normally be performing a task for which he is paid. See Government Employees Ins. Co. v. U.S., 678 F.Supp. 454, 456 (D.N.J. 1988). An employer is generally liable for a hostile work environment created by a supervisor. Heitzman v. Monmouth County, 321 N.J.Super. 133, 145-46 (App. Div. 1999).


Punitive damages may not be recovered against an employer for the wrongful acts of its employees unless (1) the act was specifically authorized, participated in, or ratified by the master; or (2) the employee who committed the wrongful act or authorized or ratified it was so high in authority as to be fairly considered executive in character. GNOC v. Aboud, 715 F.Supp. 644, 651 (D.N.J. 1989); Winkler v. Hartford Accident & Indemnity Co., 66 N.J.Super. 22, 29 (App. Div.), certif. den. 34 N.J. 581 (1961).

Categorised in: Employment Discrimination