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

Witt & Tani, TCPI 2. Intentional Harms
that, during a surgical procedure, the defendant surgeon intentionally threw at her a “surgical
drape[] containing the patient’s blood and surgical refuse,” after “ma[king] a remark to the effect
that [she] lacked the appropriate training”; the incident left “blood and fluids on [the plaintiff’s]
face,” the defendant conceded, and led to six separate rounds of blood tests (all negative) for
“HIV, hepatitis, and other communicable diseases.” The Alabama Supreme Court agreed with the
trial court that even if all the allegations were true, the plaintiff had no viable claim for “outrage”
(as IIED is called in Alabama). Although a hospital supervisor allegedly told the plaintiff to
“consider herself HIV-positive and to adapt her lifestyle accordingly,” the plaintiff was never
actually “in danger of contracting a communicable disease,” the court noted, and so had no “basis
in fact” for the fearful response she claimed. Id. at 1079, 1081.
Complicating these inquiries is the language found in the Restatement, which many
jurisdictions look to as their guide on severity: “[S]ome degree of transient and trivial emotional
distress is a part of the price of living among people. The law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected to endure it.” RESTATEMENT
(SECOND) OF TORTS § 46 cmt. j (1965) (emphasis added). What are the implications of such
language in a society with a well-recognized gender gap in the experience and expression of
particular emotions and with a cultural tendency to cast women as overly emotional? Changing
“reasonable man” to “reasonable person,” as many jurisdictions have done, facially eliminates
gender from the standard, but does it address the gender (and other) biases that factfinders might
bring with them when they evaluate a particular plaintiff’s alleged distress? For a survey of
sociological research on gender differences in the experience and expression of emotions, see
Robin W. Simon, Sociological Scholarship on Gender Differences in Emotion and Emotional
Well-Being in the United States: A Snapshot of the Field, 6 AM. J. SOC. 196 (2014).
The Restatement language presents still another puzzle: What work does the word
“reasonable” do here? Does it signal the uncompensability of sincerely felt but objectively
unreasonable distress? Or might it instead create space for uniquely sensitive plaintiffs to recover,
so long as they offer enough evidence of their subjective experience of distress to make that
experience cognizable to the factfinder, who can than test it out on the fictitious “reasonable
man”?
3. Intentionality. A successful claim of IIED also requires a showing that the defendant
acted with a particular mental state. In the words of the Restatement, the extreme and outrageous
conduct must have been done “intentionally or recklessly.” RESTATEMENT (SECOND) OF TORTS §
46 (1965). We have previously covered the word “intentionally,” in our discussion of battery. A
person acts “recklessly,” according to the Restatement, if “(a) the person knows of the risk of
harm created by the conduct or knows facts that make the risk obvious to another in the person's
situation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are
so slight relative to the magnitude of the risk as to render the person's failure to adopt the
precaution a demonstration of the person's indifference to the risk.” RESTATEMENT (THIRD) OF
TORTS: PHYS. & EMOT. HARM § 2 (2010). An example of conduct that could fairly be deemed
reckless, if not intentional, can be found in Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700
(Mo. Ct. App. 1978), where the defendant funeral director’s carelessness resulted in a woman’s
remains being buried in a shallow grave, rather than in the contracted-for vault, and where heavy
equipment then uncovered her body, parts of which the plaintiff relatives of the decedent could
see when they visited her grave site.
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