The independent cause of action for the intentional infliction of mental distress (IIMD) is the only modern intentional tort for physical injury to persons. State court judges in the United States initially recognized the freestanding cause of action during the mid-twentieth century. Nevertheless, considerable confusion has attended the judicial recognition, articulation, and application of this tort in a substantial number of American jurisdictions. The jurisprudence of IIMD that members of the Nevada Supreme Court as well as attorneys and litigants in Nevada have developed has remained rather clear, although the justices have decided comparatively few cases in which they have assumed the opportunities to explicate and refine enforcement of the cause of action or to elaborate comprehensively on the elements of the mental distress tort. Moreover, several recent determinations that the Nevada Supreme Court has issued have helped to clarify the IIMD cause of action by, for instance, specifically confirming its applicability in the important context of employment termination. Nonetheless, one of those opinions and two other decisions which the justices have resolved since 1995 could create confusion because the cases seemingly require parties who pursue IIMD claims to demonstrate that extremely outrageous behavior caused the litigants to suffer physical impacts or to experience physical injuries or physical .illnesses. Furthermore, Nevada lawyers and their clients have increasingly pied and attempted to prove that individuals who participated in extremely outrageous conduct that they intended would inflict severe mental distress on the parties behaved in ways which should expose the perpetrators to intentional tort liability, while invocation of the IIMD cause of action in Nevada promises to expand exponentially in the foreseeable future. All of the ideas above mean that those determinations in which the Nevada Supreme Court has recognized, enunciated, and applied the IIMD tort deserve assessment. This article undertakes that effort.
The first section of the article considers the origins and development of the IIMD cause of action in the United States. Finding that the overwhelming majority of jurisdictions in the country have recognized the independent tort, that California was the initial state in America to acknowledge the mental distress claim during 1952, and that the California articulation and enforcement appear to have affected rather significantly the Nevada Supreme Court's recognition, enunciation, and application of the cause of action, the second part explores the jurisprudence of the IIMD tort in Nevada. The examination afforded in section two relies substantially on the recent Nevada Supreme Court opinions which I mentioned in the first paragraph, a number of additional, significant decisions rendered by the justices over the last five years, and several of the most important earlier cases. The evaluation ascertains that the Nevada Supreme Court initially recognized the freestanding cause of action for IIMD during 1981. Moreover, the analysis determines that the jurisdiction's jurisprudence of IIMD is relatively clear, albeit somewhat limited in scope, because there is a dearth of relevant precedent in which the Nevada Supreme Court has thoroughly explained the tort or embellished the elements of this cause of action during the subsequent two-decade period. The third portion of the article, therefore, provides recommendations for future treatment of the IIMD tort in Nevada, primarily by proffering ideas that should clarify significant areas of the law that remain rather unclear.
Carl Tobias, Intentional Infliction of Mental Distress in Nevada, 2 Nev. L.J. 59 (2002)