Law 580: Torts
Tuesday, November 4, 2015
November 3, 4, 5:
• Casebook pages 683-737
Chapter 10. Infliction of Emotional Distress
I. Intentional Infliction of Emotional Distress
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm
§ 46. An actor who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional harm to another is subject to
liability for that emotional harm and, if the emotional harm causes
bodily harm, also for the bodily harm.
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 46 An actor who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional harm to another is subject to liability for
that emotional harm and, if the emotional harm causes bodily harm, also
for the bodily harm.
—
Comment d. Extreme and outrageous conduct. To be held liable under this
Section, an actor must do more than intentionally or recklessly cause emotional
harm. The actor must act in a way that is extreme and outrageous. …
….
Whether an actor's conduct is extreme and outrageous depends on the facts of
each case, including the relationship of the parties, whether the actor abused a
position of authority over the other person, whether the other person was especially
vulnerable and the actor knew of the vulnerability, the motivation of the actor, and
whether the conduct was repeated or prolonged.
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 46 An actor who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional harm to another is subject to liability for
that emotional harm and, if the emotional harm causes bodily harm, also
for the bodily harm.
—
Comment g. Role of judge and jury. As with all questions of fact, the court first
determines whether the evidence is sufficient to permit a jury to find the actor's
conduct extreme and outrageous and the harm severe, and if so, it is then for the
jury to decide whether the actor's conduct was in fact extreme and outrageous and
to award damages for the harm. However, the court plays a more substantial
screening role on the questions of extreme and outrageous conduct and the severity
of the harm… than on other questions of fact. The intentional-infliction tort (unlike
other intentional torts, which address specific types of conduct or protect narrow
interests) covers a wide range of behavior that is bounded only by the “extreme and
outrageous” limitation.
Restatement (Third) of Torts: Liability for Physical and Emotional
Harm
§ 46 An actor who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional harm to another is subject to liability for
that emotional harm and, if the emotional harm causes bodily harm, also for
the bodily harm.
—
Comment h. Actor's intent. To recover under this Section, a plaintiff must prove that
the defendant intended to cause severe emotional harm to the plaintiff or acted with
reckless disregard of whether the plaintiff would suffer such harm. An actor intends severe
emotional harm when the actor acts with the purpose of causing severe emotional harm or
acts knowing that severe emotional harm is substantially certain to result. … An actor acts
recklessly when the actor knows of the risk of severe emotional harm (or knows facts that
make the risk obvious) and fails to take a precaution that would eliminate or reduce the
risk even though the burden is slight relative to the magnitude of the risk, thereby
demonstrating the actor's indifference. …
Courts uniformly hold that reckless conduct, not just intentional conduct, can support a
claim for intentional infliction of emotional harm. …
Restatement (Third) of Torts: Liability for Physical and Emotional
Harm
§ 46 An actor who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional harm to another is subject to liability for that emotional
harm and, if the emotional harm causes bodily harm, also for the bodily harm.
—
Comment i. Conduct directed at the claimant. Actors who intend to cause severe
emotional harm often direct their conduct at particular individuals. The person intended to
be harmed is readily identifiable, and liability is, therefore, appropriately confined. In such
cases, the concept of “transferred intent,” applicable to intentionally caused physical
harm as well as to assault, may be employed if, instead of harming the intended victim, the
conduct harms a different person.
Illustration:
6. Caryn wants to take revenge on her ex-boyfriend, Mike. She calls his home one night
with a false story that his daughter has been murdered, employing a horrific account of the
events leading to her death. Unknown to Caryn, Mike's roommate, Gordie, who has a very
close relationship with Mike's daughter, answers her call and suffers severe emotional
harm at the news. Caryn is subject to liability under this Section even though she acted
with a purpose to cause emotional harm to Mike and not to Gordie.
Intentional Infliction of Emotional Distress
1. Extreme and outrageous conduct
2. Intended to cause (or committed with recklessness as to its
causing) severe emotional distress (to plaintiff or someone else)
3. Causes severe emotional distress
Littlefield v. McGuffey (7th Cir 1992)
1.
Who sued whom?
2.
What happened?
3.
What’s the procedural history?
4.
What question(s) is/are before this court?
5.
What does plaintiff argue?
6.
What does defendant argue?
7.
What does the court decide?
8.
Why?
“Under Illinois common law the tort comprises
three elements.
“First, the conduct involved must be truly
extreme and outrageous. Second, the actor must
either intend that his conduct inflict severe
emotional distress, or know that there is at least a
high probability that his conduct will cause severe
emotional distress. Third, the conduct must in
fact cause severe emotional distress.”
(p. 693)
“McGuffey claims . . . [that] the amount of the award was the result of the jury’s
being carried away by passion and prejudice, due in large part to Ms. Littlefield’s
testimony about her emotional feelings.
“But it is precisely the testimony about her emotional feelings and response to
his terror tactics which supports the award for the claims of intentional infliction of
emotional distress and racial discrimination. For example, Ms. Littlefield testified
that after Mr. McGuffey called her at work to tell her she could not move into the
apartment, she became scared, went to the washroom, cried for a half hour, and
left work for the day without explaining to her boss why because she was too
embarrassed. She also testified that in late October or early November 1988, after
moving into an apartment with her daughter and sister, a terrifying note was discovered taped to her door. The note read: ‘‘By THE Time you read this message
Kiss your Niger [sic] friend goodbye Bitch hand he’s dead!!!’’ Plaintiff’s Exhibit A.
Plaintiff’s handwriting expert testified the note had been written by McGuffey, but
the defendant’s expert was equivocal. All death threats are heinous and would
support a finding of intentional infliction of emotional distress. This one all the
more because it employs the most venomous and loathsome of racist epithets.”
— Littlefield v. McGuffey p. 695
164 Mulberry Street Corp v. Columbia University (NY App. Div. 2004) p. 705
1.
Who sued whom?
2.
What happened?
3.
What’s the procedural history?
4.
What question(s) is/are before this court?
5.
What does plaintiff argue?
6.
What does defendant argue?
7.
What does the court decide?
8.
Why?
“Generally, ‘[o]ne who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress’ .… In
order to survive a motion to dismiss, a cause of action for intentional
infliction of emotional distress must allege conduct that 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 intolerable in a civilized community…’”
(p. 708)
“While Defendant Flynn in his academic research did not intend to harass
plaintiffs, his ill-conceived mode of gathering data for the project may have
resulted in a campaign of harassment of the individual restaurant owners.
Whether or not the requisite outrageousness of the conduct has been satisfied
by the allegations is, in the first instance, an issue of law for judicial
determination … Although vested with the power to do so, the motion court
declined at this pre-answer stage of the proceedings to find that the
concededly general allegations in this case were inadequate as a matter of law.
Rather, the court found the issue of outrageousness more appropriately to be
decided by a jury.”
— 164 Mulberry Street Corp v. Columbia University, p. 708
Intentional Infliction of Emotional Distress
1. Extreme and outrageous conduct
2. Intended to cause (or committed with recklessness as to its
causing) severe emotional distress (to plaintiff or someone else)
3. Causes severe emotional distress
Wilson v. Monarch Paper (5th Cir 1991) p. 717
1.
Who sued whom?
2.
What happened?
3.
What’s the procedural history?
4.
What question(s) is/are before this court?
5.
What does plaintiff argue?
6.
What does defendant argue?
7.
What does the court decide?
8.
Why?
“[I]t is not unusual for an employer, instead of directly
discharging an employee, to create unpleasant and onerous work
conditions designed to force an employee to quit, i.e.,
‘‘constructively’’ to discharge the employee. In short, although
this sort of conduct often rises to the level of illegality, except in
the most unusual cases it is not the sort of conduct, as deplorable
as it may sometimes be, that constitutes ‘extreme and
outrageous’ conduct.”
(p. 721)
“Monarch argues that assigning an executive with a college education and
thirty years experience to janitorial duties is not extreme and outrageous conduct.
The jury did not agree and neither do we. We find it difficult to conceive a
workplace scenario more painful and embarrassing than an executive, indeed a
vice-president and the assistant to the president, being subjected before his fellow
employees to the most menial janitorial services and duties of cleaning up after
entry level employees: the steep downhill push to total humiliation was complete.
The evidence, considered as a whole, will fully support the view, which the jury
apparently held, that Monarch, unwilling to fire Wilson outright, intentionally
and systematically set out to humiliate him in the hopes that he would quit. A
reasonable jury could have found that this employer conduct was intentional and
mean spirited, so severe that it resulted in institutional confinement and
treatment for someone with no history of mental problems.
“Finally, the evidence supports the conclusion that this conduct was, indeed, so
outrageous that civilized society should not tolerate it….”
— Wilson v. Monarch Paper, pp. 723-24