Intentional infliction of emotional distress tort
post-Hustler-v.-Falwell
J. Noble
jfnbl at earthlink.com
Sat Jun 10 17:03:42 PDT 2006
Vagueness is inherent in the common law's "reasonable man" standard,
in measuring the dollar-value of "pain and suffering," and in the
characterization of "nuisance" as much as "outrageousness." Nothing
is so vague and ultimately subjective as "a preponderance of the
evidence." The judgments of juries are unavoidably discretionary and
notoriously influenced by sentiment and prejudice.
Intentional infliction of emotional distress -- defined in terms of
conduct that is "extreme and outrageous taking into consideration the
atmosphere and circumstances in which such actions occurred" --
pretty much invites a content-based judgment. But its other elements
restrain a conscientious jury:
1. A defendant intentionally injured the plaintiff, or realized that
plaintiff was likely to suffer the injuries complained of, or acted
with willful disregard of injuries that plaintiff might suffer;
2. A defendant's actions were extreme and outrageous taking into
consideration the atmosphere and circumstances in which such actions
occurred; and
3. The plaintiff suffered severe emotional distress as a direct
result of a defendant's conduct. Injuries to the nervous system and
mental pain are physical injuries which also qualify as severe
emotional distress.
You might consider your preference for statutory vs. tort remedies
against the background of Title VII. I think you can make the case
that claims based on a hostile work environment supplant the tort of
intentional infliction of emotional distress, with a less exacting
burden of proof that /requires/ a content-based judgment, that
elevates one content-based kind and cause of distress over all others
redressed by common law.
John Noble
At 11:34 AM -0700 6/9/06, Volokh, Eugene wrote:
> I'm assuming the response about the vagueness is facetious; and
>it still leaves me wondering whether there might be a serious, perhaps
>constitutionally fatal, vagueness problem here.
>
> As to the intent to cause distress, that's common in many
>picketing contexts. The stronger argument, I take it, is that the
>distress is especially likely to be illegitimate when it's funeral
>picketing that harshly condemns the deceased -- but again, even if this
>can support a content-neutral and narrow funeral picketing ordinance,
>can it really support a potentially content-based distress tort in which
>the jury must make an ad hoc judgment of "outrageousness"?
>
> Finally, I don't think the problem here is that recognizing the
>tort would "imply it is somehow outrageous to be impliedly called a
>homosexual"; the plaintiffs' claims don't rest on the theory that the
>defendants are impliedly calling their late son a homosexual.
>
> Eugene
>
>> -----Original Message-----
>> From: Lynne Henderson [mailto:hendersl at ix.netcom.com]
>> Sent: Friday, June 09, 2006 11:19 AM
>> To: Volokh, Eugene
>> Cc: CONLAWPROF at lists.ucla.edu
>> Subject: Re: Intentional infliction of emotional distress
>> tort post-Hustler-v.-Falwell
>>
>>
>> Intentional infliction of emotional distress isn't a vague tort, she
>> said after having taught torts for the first time. It's whatever
>> causes the jury to exclaim "outrageous!"
>> Actually, I think this tort deserves recognition in this context,
>> especially as these folks aren't "public figures", it isn't a parody,
>> etc. The intent of these folks is not benign, and they know they are
>> causing distress. The bad part is that recognizing the tort
>> would also
>> imply it is somehow outrageous to be impliedly called a
>> homosexual. Lynne Henderson
>>
>> On Jun 9, 2006, at 9:51 AM, Volokh, Eugene wrote:
>>
>> > The main issue, I think, is whether the logic of
>> Hustler applies only
>> > to public figure/public concern cases, or also to private
>> > figure/public concern cases (assuming that a soldier killed
>> in action
>> > is a private figure, which I suspect he typically would
>> be). I think
>> > Hustler's logic has to apply at least that far, among other things
> > > because of the risk -- or perhaps certainty -- of viewpoint
>> > discrimination that would be inherent in applying the vague
>> intentional
>> > infliction of emotional distress tort in such cases. In
>> that respect,
>> > the emotional distress tort is even worse than a narrowly
>> and precisely
>> > drafted facially content-neutral anti-funeral-picketing ordinance.
>> >
>> > Eugene
>> >
>> >> -----Original Message-----
>> >> From: conlawprof-bounces at lists.ucla.edu
>> >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of J. Noble
>> >> Sent: Thursday, June 08, 2006 7:05 PM
>> >> To: Bryan Wildenthal; Conlawprof at lists.ucla.edu
>> >> Subject: RE: Don't fight hate speech by limiting freedom
>> >>
>> >>
>> >> At 9:26 AM -0700 6/8/06, Bryan Wildenthal wrote:
>> >>> And yet, surely there must be a way to protect the privacy of
>> >>> funeral observants who simply wish to be left alone in
>> their grief
>> >>> and do NOT want the funeral to become a protest occasion of any
>> >>> sort, either in favor of or against the deceased.
>> >>
>> >> Anti-gay funeral protesters sued
>> >> Father of slain Westminster Marine says members defamed
>> him, invaded
>> >> family's privacy By Gina Davis
>> >> Sun Reporter
>> >> Originally published June 6, 2006
>> >>
>> >> The father of a Westminster Marine whose funeral was
>> picketed by an
>> >> anti-gay group is accusing its members of defaming him,
>> invading the
>> >> family's privacy and intentionally inflicting emotional
>> distress, in
>> >> the first individual lawsuit brought against the Kansas
>> organization
>> >> for its protests at these ceremonies.
>> >>
>> >> * * *
>> >>
>> >> http://www.baltimoresun.com/news/local/carroll/bal-md.ca.prote
>> > st06jun06,0,5382360.story?coll=bal-local-carroll
>> >
>> > The strong claim is intentional infliction of emotional
>> distress. The
>> > constitutional question is whether it gets a First
>> Amendment defense
>> > like NYT v. Sullivan.
>> >
>> > John Noble
>> > _______________________________________________
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>>
>_______________________________________________
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