April 01, 2013

Tort Transformation in the Cultural Quicksand of Language and Values

The history of the tort of intentional infliction of emotional distress.

Clay Calvert

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Call it a trifecta for trouble: a tort sprung by practical jokers, born of verbal bullies, and fashioned by ivory tower academics in the pages, no less, of elite law journals. With that twisted lineage, is it any wonder that intentional infliction of emotional distress (IIED) has been derisively dubbed—albeit largely accurately so—a trash tort and parasitic?

IIED is often considered a theory merely to be pled alongside something else: either a more established, traditional cause of action such as libel, or a claim grounded in tangible, physical injuries. IIED also might be appended parasitically to a statutory claim—for example, a debtor suing an overly aggressive creditor under an abusive debt-collection practices statute might toss in an emotional distress claim. In brief, IIED seems somewhat akin to a legal garnish, that tiny sprig of parsley filling space near the edge of a hamburger-and-fries platter.

It is enough to make one want to run to the nearest window, throw it open, and scream—in somewhat mad-as-hell, Network-like fashion—“Outrageous!” Although promotional posters for that 1976 film, written by Paddy Chayefsky, called it “a perfectly outrageous motion picture,” it’s no joke that courts across the country today use an “outrageousness” assessment to determine IIED liability. Borrowing from a comment in the Restatement (Second) of Torts, they have determined that the gold standard for establishing IIED liability is this maddeningly subjective test: whether “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim ‘Outrageous!’” (E.g., Lopez v. Target Corp., 676 F.3d 1230 (11th Cir. 2012)).

The Tort of Outrage

If ever there was a tort in need of transformation, at least when it comes to injuries spawned by hurtful speech that violates society’s ever-shifting and hard-to-grasp senses of decency and outrage, it is IIED or, as it is known in Florida, the tort of outrage. The responsibility for that transformation has been left mainly in the capable hands of the justices of the U.S. Supreme Court. And for 25 years they have tackled that task, bookended by the free-speech-friendly decisions in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Snyder v. Phelps, 131 S. Ct. 1207 (2011).

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