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

Witt & Tani, TCPI 2. Intentional Harms
According to Morgan, Anthony continued to follow her down the highway, variously pulling in
front of her, blocking her access to the shoulder of the road, and, when her vehicle was stopped or
debilitated, approaching her vehicle to make comments, even after she explicitly conveyed to him
her fear. Id. at 929. This pattern broke only when Morgan at last saw a diner parking lot to turn
into and got help from a family member. Id. at 930. Here, the court had “no difficulty” finding
evidence of conduct that was sufficiently outrageous to survive a motion for summary
judgment. Id. at 931.
.
There is also a broad swath of territory somewhere in the middle, where courts have
reached seemingly conflicting conclusions and only context can explain the outcomes. For
example, in Hoard v. Shawnee Medical Center, 662 P.2d 1214 (Kan. 1983), and Peddycoat v.
Birmingham, 392 So.2d 536 (Ala. 1980), erroneous statements to plaintiffs that their children had
died, in horrifying ways, did not amount to conduct that was sufficiently extreme and outrageous
to sustain a claim for IIED. In Dunbar v. Strimas, 632 S.W.2d 558 (Tenn. Ct. App. 1982), by
contrast, the court held that the plaintiff parents did state a claim of IIED where they alleged that a
medical examiner, on the basis of no valid evidence, informed them that their deceased nineteenmonth-old
daughter (found dead in her crib at a relative’s house while her mother was
hospitalized giving birth to a second child) showed signs of being sexually abused. Various
courts have found the use of racial epithets insufficiently extreme and outrageous to support a
claim of IIED, see, e.g., Dawson v. Zayre Dept. Stores, 499 A.2d 648 (Pa. Super. Ct. 1985);
Bradshaw v. Swagerty, 563 P.2d 511 (Kan. 1977), but courts have come out the other way where
the defendant made racialized derogatory comments in the course of committing discriminatory
acts (kicking a black customer out of a store, in Ledsinger v. Burmeiter, 318 N.W.2d 558 (Mich.
Ct. App. 1982); sexually harassing an employee, in Lathrope-Olson v. Oregon Department of
Transportation, 876 P.2d 345 (Or. Ct. App. 1994)).
One factor that helps make sense of seemingly conflicting outcomes is the perceived
fragility of the plaintiff and whether the facts suggest that the defendant knew about the plaintiff’s
vulnerable state. As the Restatement authors explain, “the extreme and outrageous character of
the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or peculiarity.” Conduct that
might not otherwise be considered “heartless, flagrant, and outrageous” may become so “when the
actor proceeds in the face of such knowledge.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. f
(1965).
2. What constitutes severe emotional distress? Plaintiffs in IIED cases must not only clear
the high bar of outrageousness but must also prove that the distress they experienced was
sufficiently severe. Proving severe emotional distress can be especially challenging when the
plaintiff has not responded to the defendant’s conduct in the way a judge or jury finds intuitive.
For example, in the Jones v. Clinton case referenced above, the court declined to credit the expert
report Jones submitted regarding the psychological and emotional impact of Clinton’s alleged
behavior while treating as significant evidence that Jones “never missed a day of work following
the alleged incident”; continued to work at her job for another nineteen months, even though it
required her to “go on a daily basis to the Governor’s Office to deliver items”; and never formally
reported the incident to a supervisor. 990 F. Supp. at 678.
The Supreme Court of Alabama was similarly skeptical of the plaintiff’s claim of severe
distress in Grantham v. Vanderzyl, 802 So.2d 1077 (Ala. 2001), where the plaintiff nurse alleged
64