Religion and torts -Reply

[Eugene Volokh]

Jack Balkin writes:

> My understanding of IIED is slightly different from Eugene's.  The conduct
> must be outrageous, that is, beyond the bounds of civilized decency.
> Hence the Restatement suggests that after hearing about it, you are
> given to exclaim "That's outrageous!"  (Talk about a formally realizable
> test....)

    As to the above, Jack and I are in agreement; and I also agree
that a defendant's actions *might* be made outrageous by his
knowledge of the plaintiff's special sensitivities.

    Nonetheless, this need not always be the case, and I'd say that
often it will not be.  Consider Illustrations 15 and 16 from the
Restatement (2nd) Torts sec. 46 (the IIED section):

    "During A's absence from her home, B attempts to commit suicide in
    A's kitchen by cutting his throat.  B knows that A is
    substantially certain [or even highly likely] to return and find
    his body, and to suffer emotional distress.  A finds B lying in
    her kitchen in a pool of gore, and suffers severe emotional
    distress.  B is subject to liability to A."

I take it that the same result would obtain if B is allowed to be in
A's home, perhaps because B and A are housemates, or if the event
happens in an area that's frequented by A -- I'm assuming that
trespass on A's property isn't a component here.  And note that A
need not be intentionally trying to distress B:  It's enough (comment
i) that A "know[] that such distress is certain, or substantially
certain, to result from his conduct," or even that A "deliberate[ly]
disregard . . . a high degree of probability that the emotional
distress will follow."

    Now let's say that A knows that B can't stand "immodest" dress,
gets severely emotionally distressed when he sees such dress, and
considers such dress to be beyond the bounds of civilized decency,
under his religious principles.  Despite this, A wears a skimpy
bikini to the pool in the house they share -- or, for that matter, to
the living room.  I take it that A can't possibly be held liable for
IIED; B's religious beliefs can't be a justification for restricting
A's conduct.

    This, it seems to me, is the paradigm situation where:

    *  The law requires a case-specific application of a mushy
       standard -- here "outrageousness," just as in Sherbert it was
       "good cause" or in other cases it's "reasonableness."

    *  The standard is generally applied with reference to
       majoritarian attitudes.

    *  It would be entirely improper to, in the name of free exercise,
       give equally deeply held -- or even more deeply held --
       religious attitudes of the plaintiff "equal respect" with
       the majoritarian attitudes; to do so would be to allow the
       plaintiff to impose his religious beliefs on the defendant.

>      This means that normally hypersensitive plaintiffs (that's what Eugene
> is really talking about) can't recover if the defendant is unaware of the
> plaintiff's hypersensitivity.  On the other hand, if the defendant is aware
> of the plaintiff's special sensitivities, and deliberately acts to tweak them,
> this conduct might indeed be considered outrageous.  But even here,
> culturally influenced considerations of reasonableness apply.  To enrage
> a person whose sensitivities you are aware of may nevertheless be
> justifiable on other grounds, in which case the conduct is not
> outrageous.
>      The Intentional Infliction of Emotional Distress is thus not really suited
> for cases where a person saves another's life in ways that offend the
> other's (or a third party's) religious beliefs.   The defendant is aware of
> the plaintiff's hypersensitivities, but the action is justified on other
> grounds.

    I agree as to the above paragraph:  I was giving IIED as an
analogy; I did not think that IIED is the proper cause of action for
a "wrongful transfusion" example (I take it battery would be the
right one).

>  It is more suited to a case like the "voodoo hypothetical":
> where the defendant deliberately sticks pins in a voodoo doll in front of a
> plaintiff who believes in voodoo, even though a normal person would not
> be affected in the same way.  These cases begin to blend into religious
> harassment cases, in the same way that analogous cases begin to blend
> into the law of sexual and racial harassment.

    Well, I certainly hope that "religious harassment," for all the
currency it has (in my view, largely wrongly) gotten in workplace
contexts, has not yet expanded into the general tort realm.

                               -- Eugene Volokh, UCLA Law