As the injuries you describe arose from the mental trauma to the
child, as opposed to from direct physical abuse by the parents, the
causes of action the child might pursue would ordinarily be the
- Negligent Infliction of Emotional Distress
- Intentional Infliction of Emotional Distress
Although the brain injury you describe is physical, it resulted from
the child's response to emotional trauma. As outlined herein, the type
of self-abuse you describe is consistent with a childhood stress
disorder, and a mental health professional should be able to testify
to the causal link between the stress and the injury suffered.
I. Negligent Infliction of Emotional Distress
The tort of "Negligent Infliction of Emotional Distress" typically has
the following elements:
1. The defendants engaged in negligent conduct that they knew or
should have known involved an unreasonable risk of causing emotional
2. The emotional distress that results from the defendants' conduct is
3. Of severe emotional distress.
In negligent infliction cases, it is usually required that the
emotional distress be "medically diagnosable" and is severe enough to
be "medically significant."
For a description of this cause of action under Missouri law, which
slightly restates but otherwise follows the elements outlined above,
see the question 2(g) from the key to the Fall, 1999 final examination
given by Professor Edward P. Richards, III, posted on the Medical and
Public Health Law Site, hosted by the Louisiana State University
School of Law.
A. Conduct Defendants Knew or Should Have Known Would Cause Emotional
The conduct you describe, parental abuse so severe as to create an
atmosphere of terror, should support this cause of action. It is not
necessary that the parents intended to cause the emotional distress,
but only that it was reasonably foreseeable that their conduct would
cause emotional distress. The situation you describe goes well beyond
what might be considered reasonable.
B. Causation of Severe Emotional Distress
A diagnosis of a mental health disorder by a qualified practitioner
would ordinarily meet the first element, and the physical harm
resulting from the child's response to the trauma would satisfy the
second. For a good overview of the psychological disorders associated
with child stress, and how the symptoms you describe are consistent
with a stress disorder, see the article from the Child Trauma Academy
website, "Trauma and Terror in Childhood: The Neuropsychiatric Impact
of Childhood Trauma".
An article from that same website, which is no longer available on the
site but may still be read in Google's cache, also discusses childhood
head-banging and self-abuse as associated with stress disorders.
"Homeostasis, Stress, Trauma and Adaptation: A Neurodevelopmental View
of Childhood Trauma":
II. Intentional Infliction of Emotional Distress
The tort of "Intentional Infliction of Emotional Distress" typically
has the following elements:
1. The defendant must act intentionally or recklessly;
2. The defendant's conduct must be extreme and outrageous; and
3. the conduct must be the cause
4. of severe emotional distress.
Ordinarily, the conduct giving rise to this cause of action 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."
The Medical and Public Health Law Site, hosted by the Louisiana State
University School of Law, describes this cause of action under
Missouri Law (Missouri's elements and requirements are quite typical
for this cause of action):
For another enumeration of the elements of this cause of action, see
the course materials presented on the website of Susan Gibbs, from a
torts class she taught in Spring, 2001.
Please note that this cause of action requires intent on the part of
the defendants. Your depiction of a house where the children are
"terrorized" should support a claim that there was intent to inflict
emotional distress. It is not necessary for the defendants to intend
the specific harm suffered - only that they intend emotional distress
to be suffered.
The Medical and Public Health Law Site, mentioned above, indicates
that some jurisdictions are adding an additional element to this cause
of action - that the emotional distress suffered be medically
diagnosable and medically significant. The type of distress that would
lead a child to beat his head against a wall to the extent of
suffering brain injury should amply meet this requirement.
A. Intentional Acts of an Extreme and Outrageous Character
Acts of violent abuse are of an intentional nature. By definition, an
act of abuse goes beyond the level of corporal punishment or
discipline of a child permitted by law. Accordingly, there should be
no difficulty establishing the requisite intentional acts.
The next question is whether those acts are "extreme" and
"outrageous". The intentional terrorizing of children, even your own,
should meet that standard. With the child's displays of self-abuse,
and the parents' continued bad conduct even in the face of that
evidence of trauma, it would be more than fair to assume that they
intended to scar the child emotionally, if not physically. It would be
reasonable to find this conduct "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency",
and as atrocious and utterly intolerable in a civilized community.
Simply put, our society doesn't tolerate torture or terrorization of
B. Causation of Severe Emotional Distress
The analysis under this factor is the same as outlined in Section
I(B). If both causation and severe emotional distress are established
under a negligence theory, which typically imposes a higher burden of
proof on the plaintiff, those elements would also be established for
the theory of intentional infliction of emotional distress.
III. Additional Considerations
A. Statute of Limitations
As you are describing an injury to a child, with a delayed realization
of causation, you must consider the application of the statute of
Every U.S. jurisdiction has statutes of limitation for civil
litigation. The term during which a cause of action can be filed
varies depending upon the cause, and upon the jurisdiction.
An injured minor is usually offered a period of time after he reaches
the age of majority to bring a lawsuit for injuries he suffered as a
child, usually between one and three years after the minor reaches the
age of eighteen.
People who are under a disability, such as severe mental illness, may
be given additional time to file a cause of action for an injury,
equivalent to the time they are disabled by the mental illness.
A person who is not otherwise excepted from the statute of limitations
may be able to file a lawsuit even after the statutory time appears to
have passed, based upon the "discovery rule". This rule, when
applicable, allows an injured person to bring a claim for damages
based upon the date when he knew, or reasonably should have known,
that the defendants caused him injury. The period following discovery
during which the delayed cause of action can be filed is often short -
usually one or two years, and sometimes less.
For an overview of how statutes of limitation work, see the "Legal
Primer on Statute of Limitations" from the website of attorney Jeffrey
B. Public Policy
Some states may bar or limit this type of intrafamily lawsuit on
public policy grounds. See, for example, the 1997 decision of the
Illinois Court of Appeals, Commerce Bank v Augsburger:
Many states have similar public policy to that outlined in Augsburger:
Illinois courts have relied consistently on three major public policy
considerations for the parent-child tort immunity doctrine:
(1) the preservation of family harmony,
(2) the discouragement of fraud and collusion, and
(3) the preservation of parental authority and discipline.
Litigation over abuse of the severity you describe should not conflict
with public policy, but you should anticipate that the defense will be
raised. By the same token, if you satisfy the element of an
intentional infliction claim that the conduct is intolerable in a
civilized society, it logically follows that the litigation advances
Google Search: elements "negligent infliction of emotional distress"
Google Search: dsm-IV post-traumatic stress child banging head
Google Search: "discovery rule" "statute of limitations"
Google Search: "intrafamily litigation" "public policy"
Search for stress disorders on the Child Trauma Academy website,
I hope you find this helpful,
Clarification of Answer by
24 Oct 2002 21:12 PDT
The plaintiff would have the option of suing one or both parents.
However, there are potential drawbacks to suing only one parent. For
- That parent may argue that the other was actually to blame for the
injury (the "empty chair" defense, named after the fact that the
defendant figuratively points to an empty chair at the defense table,
and argues that the real villain should be sitting in it). A
discussion of the "empty chair defense" in the context of medical
malpractice claims is presented on the law firm website of Lavin &
Nisivaco, P.C. - although we are not discussing a malpractice case
here, the analysis is essentially the same:
- If you only sue one parent, a court may later determine that you are
not permitted to sue the other. This is on the basis of "judicial
economy". In essence, this doctrine holds that it wastes the limited
resources of the court to allow multiple cases to proceed based upon
the same injuries to the same plaintiff, arising from the same set of
- If you lose the initial case, you may be barred from bringing an
action against the other parent under the doctrine of "collateral
estoppel" - the principle that once an issue is resolved by a first
trial, you cannot attempt to achieve a different resolution of the
same issue at a second trial. There is a discussion of "collateral
estoppel" at the very end of this document, Google's HTML presentation
of a Fall 1998 "civil procedure" outline by Sterling Park Shadow:
- If you take one parent to trial and lose, even if a second trial is
permitted against the other parent, the fact of the unsuccessful
initial litigation is likely to come into evidence making it
significantly less likely that you can prevail at a second trial.
It would be possible to simultanously file separate lawsuits against
each parent. However, the net result will likely be that the trial
court exercises its power of "joinder", combining the two separate
lawsuits into a single proceeding. Thus, if only to save on filing
fees, it would probably make the most sense to file a single lawsuit
naming both parents as opposed to separate, simultaneous lawsuits
against each parent.
Google search for "empty chair defense"
Google search for "judicial economy" "second lawsuit"
I hope this answers your remaining concerns,