Torts Class Notes 8/27/03




Last time, we talked about false imprisonment.We added a couple of cases where false imprisonment could lie, for example, in Whittaker, where the plaintiff was fraudulently induced to count on the defendant, and thus the defendant had a duty to let her off the ship.


However, if you didnít put the person in the position where they are imprisoned, you do not have the duty to let them out.


Neither mistake nor insanity negates intent.


If we have the choice between making the innocent injured person and the injurer pay, we want the injurer to pay.


In general, the insane do not get very good treatment if they commit a tort.


Intentional infliction of mental distress


Restatement (Second) of Torts ß46 is an authority on this tort.


Recall the elements of the tort:


1.     Intentional or reckless

2.     Severe emotional distress

3.     Extreme and outrageous

4.     Actual damages

5.     No transferred intent

6.     Effects on third parties


Siliznoff continued


Siliznoff tries to argue for assault, but there are only threats of future injury.


Why does the court say it is a good idea to have an intentional infliction of mental distress claim?

  • We want people to be free of severe emotional distress.
  • A mental or emotional injury is a real injury.
  • The defendantís behavior has no social utility and thus there is no reason to protect it.
  • We award damages for mental suffering in other torts.


On the other hand, why do others think itís a bad idea to recognize this tort?


  • Itís hard to quantify damages.
  • Itís hard to prove damages.
  • Juries arenít qualified to assess the damages from mental and emotional suffering.
  • You may open the floodgates to many potentially fraudulent or weak claims.
  • There is no basis in the common law for intentional infliction of mental distress.It wasnít recognized under the trespass writ.


Why canít Siliznoff win on false imprisonment?


Some courts require a plaintiff to demonstrate physical manifestations of their mental injury.This is a hard causal connection to make.


Slocum v. Food Fair Stores of Florida


Slocum was insulted by an employee of the defendant.Her claim is dismissed for failure to state a cause of action.She appeals, and the appeal is upheld.The Supreme Court of Florida decides not to make new law here.


Slocum claims the insult caused her to have a heart attack and it aggravated her pre-existing heart disease.


The court says an objective standard should be applied rather than a subjective standard: how would a person of ordinary sensitivity react to this conduct?


An objective standard is useful for preventing a slippery slope or fraudulent claims.


What if the defendant had pushed the plaintiff away while insulting her?The defendant would be liable for battery.What if the defendant just grabbed her shopping cart?By the extended personality doctrine, you would still probably be able to recover for battery.If she did, would she get damages for her mental distress?


Intentional infliction of mental distress has a higher standard of proof than other intentional torts.


When you are found liable for an intentional tort, you can recover for all the damages, even the ones the defendant didnít expect to occur.Emotional distress thatís part of another intentional tort is easier to prove.


Why didnít the woman in Western Union sue for intentional infliction of mental distress?In 1933, you couldnít have sued for that tort.Intentional infliction of mental distress is one of the ďyoungestĒ torts around.Itís still controversial.


There is a higher standard of care expected for a common carrier.


Intentional infliction of mental distress is very likely if you use a racial epithet.


Picking on an immutable characteristic of a person makes it more likely that your insult will be held to be intentional infliction of mental distress.


Harris v. Jones


What happened to Harris?He worked at GM and he was harassed repeatedly by his supervisor.He has a stuttering problem for which his supervisor ridiculed him.


What is the defendantís side of the issue?It was a rough environment.


What did the plaintiffís lawyer fail to do?There was no evidence presented that the stuttering problem was made worse by the harassment.The court said you could recover for intentional infliction of mental distress if you prove that your problem was made worse.


The plaintiff didnít manage the case well.


Exploitation of a known sensitivity usually leads to a better chance of proving intentional infliction of mental distress.


If two people have unequal power in a relationship, intentional infliction of mental distress is more likely to lie if the more powerful person insults the less powerful person.


Be wary of the tort of intentional infliction of mental distress in the employment setting.


Extended victimization of an individual for immutable characteristics is problematic.Harris had a lot going for him, but had a bad lawyer.


Things that make intentional infliction of mental distress more likely to lie:


  • repetitive conduct
  • unequal power

A hypothetical


Defendants tell the plaintiff that her husband stole a car and tell her that they are going to call the people.The defendants know that she has emotional problems.She stands there scratching her face.Is this a good case for intentional infliction of mental distress or not?Why are the defendants telling her this?The defendants are trying to make her feel bad.Is this outrageous conduct?


The court found that her emotional distress was not great, but they found that the conduct was outrageous.It had a lot to do with the defendantsí knowledge of the plaintiffís sensitivities.The tirade also lasted a long time.


Continued, repetitive harassment matters.


Pregnant women and women generally get special protection.This could be seen as sexist.


Abuse of power and exploitation of known sensitivities make a finding of intentional infliction of mental distress more likely.


Next time, we will continue with Taylor.


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