Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
ongoing harassment of an employee, if the cumulative quality and quantity of the harassment is
extreme and outrageous.
. . . .
We agree with the overwhelming weight of authority in this state and around the country
that when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a
whole in determining whether it is extreme and outrageous. Accordingly, we hold that the court
of appeals did not err in doing so.
We now consider whether Shields’s conduct, taken as a whole, amounts to extreme and
outrageous conduct. “It is for the court to determine, in the first instance, whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as to permit recovery . . . .”
When reasonable minds may differ, however, it is for the jury, subject to the court’s control, to
determine whether, in the particular case, the conduct has been sufficiently extreme and
outrageous to result in liability. Restatement (Second) of Torts § 46 cmt. h. To support liability
for intentional infliction of emotional distress, it is not enough that the defendant has acted with
an intent that is tortious, malicious, or even criminal, or that he has intended to inflict emotional
distress. Id. § 46 cmt. d. Although the defendant's intent is relevant, the conduct itself must be
extreme and outrageous to support liability.
. . .
We recognize that, even when an employer or supervisor abuses a position of power over
an employee, the employer will not be liable for mere insults, indignities, or annoyances that are
not extreme and outrageous. But Shields’s ongoing acts of harassment, intimidation, and
humiliation and his daily obscene and vulgar behavior, which GTE defends as his “management
style,” went beyond the bounds of tolerable workplace conduct. The picture painted by the
evidence at trial was unmistakable: Shields greatly exceeded the necessary leeway to supervise,
criticize, demote, transfer, and discipline, and created a workplace that was a den of terror for the
employees. And the evidence showed that all of Shields’s abusive conduct was common, not rare.
Being purposefully humiliated and intimidated, and being repeatedly put in fear of one’s physical
well-being at the hands of a supervisor is more than a mere triviality or annoyance.
Occasional malicious and abusive incidents should not be condoned, but must often be
tolerated in our society. But once conduct such as that shown here becomes a regular pattern of
behavior and continues despite the victim’s objection and attempts to remedy the situation, it can
no longer be tolerated. . . . Conduct such as being regularly assaulted, intimidated, and threatened
is not typically encountered nor expected in the course of one’s employment, nor should it be
accepted in a civilized society. . . . Accordingly, the trial court properly submitted the issue to the
jury, and there was some evidence to support the jury’s conclusion that Shields’s conduct was
extreme and outrageous.
B. Intent
[Under the doctrine of vicarious liability, it is not necessary that GTE acted with the requisite intent.
“If the intentional tort is committed in the accomplishment of a duty entrusted to the employee,
rather than because of personal animosity, the employer may be liable. Shields’s acts, although
inappropriate, involved conduct within the scope of his position as the employees’ supervisor.”]
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