Sua Sponte: A Judge Comments

When a claim for IIED is critically examined, it often appears that the plaintiff’s analysis came to a screeching halt after consideration of the first element. The defendant’s extreme and outrageous conduct may take the observer’s breath away. It may appear to meet the criteria of “atrocious and utterly intolerable in a civilized society” and “beyond the bounds of decency.” However, what was the defendant’s intent when blasting out with the outrageous conduct? Was the conduct intended to cause severe emotional distress to the plaintiff or was it done with reckless disregard of the possibility of causing the severe emotional distress? This element may not be met when a defendant pleads his or her motive for the conduct or is able to present evidence of ignorance that the plaintiff’s emotional health would take a blow as a consequence of the conduct. (After all, an outrageous actor is often the same dolt who is oblivious to the effect of his or her actions.) The plaintiff’s injury must be a neurosis, psychosis, chronic depression, or phobia that is substantial or enduring, diagnosed by a professional, and caused by the defendant’s conduct.

When the plaintiff determines that each of these elements exists, the plaintiff must then examine the “civilized society” within which the conduct occurred. Reasonable expectations of behavior shift with the venue. Tolerance for behavior is subjectively determined by the roving reasonable person wandering into a specific social space. Consider sports matches between teams where fan behavior is tolerated at a higher level of outrageousness than at other venues. Reviewing courts continue to tell us that civilized society, along with the reasonable person, is a nomadic, moving target in the law.

Even assuming that careful counsel fully and properly pleads IIED, let the plaintiff beware of discovery. Although the IIED claim may not be the plaintiff’s primary theory of recovery, it often ends up controlling discovery. Why is this plaintiff the reasonable standard of tolerance of outrageous conduct? What occurred in this plaintiff’s life that makes him so fragile? Are you sure your emotional distress wasn’t caused by an event that happened when you were six years old? When faced with a request by the defendant for permission to bulldoze through the plaintiff’s psyche, life, health, and beliefs, the issues raised by IIED will generally leave the trial judge shrugging in discovery motions: “You pleaded the IIED, counsel, and your opposing counsel is entitled to discover defenses to it.” If I had one comment I would append to pleading manuals setting out IIED elements it would be this: Counsel should critically examine whether pleading IIED will result in broader discovery parameters than the plaintiff’s primary claims for recovery afford. Will this “tiny bit of parsley near the edge” cause more indigestion than the burger and fries?

Although the pleading of an IIED claim may support a strategy not usually apparent to this trial judge, trial counsel’s apparent failure to have considered bringing a motion for summary adjudication or the client’s distaste for invasive discovery has often been very clear to me as the case proceeds. This is particularly ironic given that an IIED claim is generally one the jury need not be required to tackle in order to understand the plaintiff’s case. Plaintiff’s counsel should go through this comparative checklist before blithely throwing an IIED claim into the mix.

Trial courts are seeing expanded use of a defense to IIED claims in which defendants argue that the accepted standards on the web are different, an example of our ever-changing civilized communities. Defendants insist that electronic messages are inherently less civil and that users of electronic spaces are therefore expected to be thicker skinned. The cyber-message is fast and widespread, and it is dispatched with a more cavalier social filter. Human behavior experts tell us that it’s emotionally easier to be outrageous and beyond the bounds of decency in written messages conveyed without the need to face the recipient either in person or in a telephone call. Because few of us are taking the time to pen outrageous and extreme communications and track down a first class stamp and a mailbox, the Internet is the default choice for snarky communication.

The defense du jour is simple. The defendant doesn’t contest the egregious quality of his or her communication but contends that its impact has been mitigated by an apology. This evolving defense is supported by constant examples of public figures who have been able to mitigate the effects of a regrettable act by a “whoops, so sorry,” which theoretically cuts off the plaintiff’s emotional tailspin (damages) by delivering a heartfelt apology.

Although we look forward to bright lines in the world of IIED, the simple fact is that “civilized communities, definitions of atrocious behavior, and tolerance levels for others’ horrible behavior” are organic components that bob and weave with the social wind. Each time one reaches the point of throwing open the pleading window with an outraged “I’m not going to take it anymore,” an examination of how reviewing courts have molded the IIED claim is recommended. Nevertheless, trial courts will continue to have dockets bursting with IIED claims for a long time. The tort exists because society demands it, not because theoreticians have inferred it. Judges and lawyers can assist in its shaping, but there will always be fact patterns sufficiently grotesque to require its existence. If Rush Limbaugh had called your daughter a “slut,” which side of the issue would you be on?