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Q&A: Can you sue for intentional infliction of emotional distress where one spouse has been emotionally damaged by the adultery of the other?

May 8, 2020

Whether the tort of intentional infliction of emotional distress (“IIED,” also known as the “tort of outrage”) is recognized at all depends on the state. Kentucky recognizes this cause of action, but reserves it as a “gap filler” where no other cause of action would be applicable and only in extraordinary factual circumstances. IIED claims are not the same thing as a claim for mental or psychological damages accompanying physical injuries caused by, for instance, a car accident.

In Kentucky, as in most states, it is difficult to prevail on an IIED claim. As Kentucky’s Supreme Court has explained:

The conduct in question must be extreme, or outrageous and intolerable in order to sustain an intentional infliction of emotional distress claim. It must violate generally accepted standards of decency and morality. It must be more than bad manners, and must cause severe emotional distress, not just hurt feelings.

Childers v. Geile, 367 S.W.3d 576 (Ky. 2012), available at https://casetext.com/case/childers-v-geile-1.

An ordinary case of adultery will not support an IIED claim. However, there is also case law holding that the existence of a special relationship between the parties can made the conduct outrageous.

In a case where a couple had sought marriage counseling with a priest, and the priest subsequently entered into an affair with the wife, my Kentucky’s Supreme Court rejected the trial court’s dismissal of the husband’s IIED claim against the priest on the grounds that ordinary fraud and adultery could never reach the status of outrageous conduct.

The Kentucky Supreme Court disagreed, and reinstated the IIED claim because of the special relationship in the circumstances here. It wasn’t just an ordinary case of adultery. See Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000), available at https://casetext.com/case/osborne-v-payne?.

Note that the claim in Osborne was directed against the priest, not the other spouse. I doubt an IIED claim of one spouse against the other spouse rather than the priest would have been upheld even in that same scenario.

I think an IIED claim against one’s own adulterous spouse would be unlikely to succeed, even in a state that otherwise recognizes IIED as a tort.

This is a blog post, not specific legal advice. No attorney-client relationship is intended or created.