CAUSES OF ACTION
The Tort of Outrage or “Orneriness” – Part 2
Intentional infliction of emotional distress (IIED) cases that have potentially been successful in Oklahoma have generally involved fraud, defamation, acts of insurance adjusters or unlawful collection tactics. Employment cases have presented many outrageous scenarios, but most have not risen to the level of IIED. The cause of action is often pled, but seldom proved. Following are some examples of cases in which there was at least a potential of proving IIED:
Defamation: In Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85, 93, mental anguish and suffering could be included in actual injury and actual damages to a defamed party, along with impairment of reputation and standing in the community and personal humiliation. In Sturgeon v. Retherford Publications, Inc., 1999 OK CIV APP 78, 987 P.2d 1218, 1227, the court allowed amendment of the petition since it was possible the plaintiff could support allegations of outrageousness in statements published about a property dispute.
Fraud: In Worsham v. Nix, 2006 OK 67, 145 P.3d 1055, 1063, a woman suffered emotional distress upon learning a lawyer had not filed suit as he said he did regarding her husband’s being taunted by fellow employees. “The claim is based on the purported wilful conduct of [the lawyer]…” and “…a trier of fact may be warranted in viewing the situation as one where the ordinary, natural and proximate result of Defendants’ claimed wrongdoing would be one where [the wife] would suffer compensable emotional distress upon learning of the fraudulent conduct.” Id. at 1072. In Zaharias v. Gammill, 1992 OK 149, 844 P.2d 137, 140, a father with a custody order could potentially prove intentional infliction when the maternal grandfather helped the mother hide his children. In Miller v. Miller, 1998 OK 24,956 P.2d 887, 899, a claim was stated for intentional infliction when an ex-wife and her parents misrepresented the paternity of a child, but told the child at age 15 that the ex-husband was not her father.
Insurance and bill collectors: When an insurance agent berated an insured who was collecting sick benefits, the court in National Life & Accident Insurance Co. v. Anderson. 1940 OK 219, 102 P.2d 141, required evidence and an instruction “’…that the defendant so acted with intent to injure plaintiff, or that defendant knew the plaintiff was in such condition that it would be probable that such conduct would result in serious injury and acted in wilful disregard of plaintiff’s condition and in wilful disregard of the possibility of serious injury; or acted with such malice toward plaintiff as would indicate a conclusion to so act in disregard of whatever damage might be occasioned thereby.’” Id. at 142. The defendant’s motive was a jury question. Id. In contrast, merely declaring a company would take steps it was legally allowed in collecting a debt could not form the basis for an action according to the court in Peoples Finance & Thrift Company v. Harwell, 1938 OK 437, 82 P.2d 994: “In our opinion, there is a vast difference in causal effect between a simple statement of purpose based on a clear legal right, and aggravated, wanton or abusive language in excess of anything reasonably calculated to state a person’s purpose based upon a clear legal right.” Id. at 995. The court of appeals in Reeves v. Melton, 1973 OK CIV APP 22, 518 P.2d 57, found a woman who was harassed over payment for a TV-stereo presented competent evidence of breach of the peace and trespass and intentional infliction of extreme mental distress. Id. at 62. In cases of debt collection, the common law allowed mental distress damages only to a non-debtor victim: In Bennett v. City Nat. Bank & Trust Co., 1975 OK CIV APP 71, 549 P.2d 393, a valid cause of action was pled for a woman’s anguish when a bank tried to collect a debt owed by her son. “Defendant … engaged in unprotected activity by using his position of apparent ability to affect the plaintiff’s interest from which he could reasonably expect extreme mental distress to result.” Id. at 397-398. However, when there is a legitimate debt to be collected, if the bill collector does not exhibit intentional, reckless, extreme and outrageous conduct, there is no cause of action. See, Deutsche Bank Nat. Trust Co. v. Daniel, 2009 OK CIV APP 13, 217 P.3d 127, 131; Carrigan v. Henderson. 1943 OK 85, 135 P.2d 330, 331 (syllabus). “It is well established that a threat to do that which one has a legal right to do cannot be the basis of an action.” Bennett, 549 P.2d at 398.
Sexual abuse: Mental anguish associated with sexual abuse would constitute negligent infliction of emotional distress in a negligence claim against authorities who allowed the abuse to occur, but in Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, 188 P.3d 158 (f.n.22), more facts were necessary to develop an IIED claim.
CASES THAT HAVE NOT AMOUNTED TO IIED
When actions are lawful, unintentional, and neither reckless nor outrageous, IIED will not be allowed.
Alienation of affection: Since alienation-of-affection cases have been abolished, a wronged spouse also has no claim for intentional infliction of emotional distress. Wilson v. Still, 1991 OK 108, 819 P.2d 714.
Discovery abuse: When a party did not seek a protective order, alleged abuse of discovery with no indication of ulterior purpose or improper acts did not support action for intentional infliction. Big Five Community Services, Inc. v. Jack, 1989 OK CIV APP 68, 782 P.2d 412, 413.
Enforcement of organization’s rules: The actions of a youth sports association that required a boy’s baseball team to forfeit a tournament game were not “… so extreme and outrageous as to meet the standard for the tort of intentional infliction of emotional distress.” Warren v. United States Specialty Sports Assn., 2006 OK CIV APP 78, 138 P.3d 580, 585.
Government agencies: Because intentional, malicious or reckless acts usually remove employees from the scope of their employment, government agencies will not be liable for such acts. See, McMullen v. City of Del City, 1996 OK CIV APP 46, 920 P.2d 528; Fehring v. State Insurance Fund, 2001 OK 11, 19 P.3d 276, 283; Tanique, Inc. v. State ex rel. Oklahoma Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, 99 P.3d 1209, 1214; Parker v. City of Midwest City, 1993 OK 29, 850 P.2d 1065, 1068.
Investigation of employees: In a workplace investigation into employee conduct, as a matter of law, harsh interrogation did not rise to outrageous or atrocious behavior warranting damages for intentional infliction. Ishmael v. Andrew, 2006 OK CIV APP 82, 137 P.3d 1271, 1277; see also, Eddy v. Brown, 1986 OK 3, 715 P.2d 74, 77 (supervisor’s disclosure of psychiatric information to co-workers); Haynes v. South Community Hosp. Management, Inc., 1990 OK CIV APP 40, 793 P.2d 303, 306-307 (hospital investigation of whether employees were diverting medications from patients).
Privilege: Privileges will bar IIED claims. See, Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941, 954 (quasi-judicial act filing of delayed birth certificate); Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983, 990 (fair report privilege); Brock v Thompson, 1997 OK 127, 948 P.2d 279, 294, and Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128 (initiative petitions); Bennett v. McKibben, 1996 OK CIV APP 22, 915 P.2d 400, 404, and Pryor v. Findley, 1997 OK CIV APP 74, 949 P.2d 1218, 1219 (slander-of-title); Paulson v. Sternlof, 2000 OK CIV APP 128, 15 P.3d 981, 984 (absolute privilege of attorneys, parties and witnesses in judicial or quasi-judicial proceedings); Hathcock v. Barnes, 2001 OK CIV APP 69, 25 P.3d 295 (psychologist’s evaluation); Hartley v. Williamson, 2001 OK CIV APP 6, 18 P.3d 355, 358 (doctor’s testimonial immunity); but see, Guinn v. Church of Christ of Collinsville, 1989 OK 8, 775 P.2d 766 (church not protected by First Amendment or privilege in denouncing former member as a fornicator).
Release of mortgage: Failure to release a mortgage is governed exclusively by statute, 46 O.S. §15, barring IIED claims. Thaxton v. Beneficial Mortgage Co. of Oklahoma, 2006 OK CIV APP 101, 145 P.3d 124.
Trespass: In Chandler v. Denton, 1987 OK 38, 741 P.2d 855, 867, breaking-and-entering and assault episodes supported a verdict for IIED, but in Frank v. Mayberry, 1999 OK 63, 985 P.2d 773, 776, a conflict over real property did not rise to that level.
Wrongful termination: Although many employment cases have been brought for wrongful termination, with employees complaining of intolerable working conditions, in general, I have omitted such cases from this article. In Joffe v. Vaughn, 1993 OK CIV APP 169, 873 P.2d 299, the IIED claim for lies told about a Tulsa news anchor that led him to commit suicide went to the jury and resulted in a large verdict for the plaintiff. For examples of how supervisors’ vulgar or offensive conduct was not sufficiently outrageous, see Anderson v. Oklahoma Temporary Services, Inc., 1996 OK CIV APP 90, 925 P.2d 574; Mirzaie v. Smith Cogeneration, Inc., 1998 OK CIV APP 123, 962 P.2d 678; Gabler v. Holder and Smith, Inc., 2000 OK CIV APP 107, 11 P.3d 1269, 1280; Chenoweth v. City of Miami, 2010 OK CIV APP 91, 240 P.3d 1080. In contrast, when police officers sued a city under 42 U.S.C. §1983 for being demoted without due process, it was for a jury to decide whether the facts warranted damages for IIED. Barnthouse v. City of Edmond, 2003 OK 42, 73 P.3d 840; see also, Tsotaddle v. Absentee Shawnee Housing Authority, 2001 OK CIV APP 23, 20 P.3d 153, 161 (in civil rights wrongful termination case, jury could award damages for emotional distress, suffering and humiliation).
Workers’ compensation: Election of workers’ comp benefits barred suit against an employer for intentional infliction. Griffin v. Baker Petrolite Corp., 2004 OK CIV APP 87, 99 P.3d 262, 267.
BRINGING A CASE
When emotional distress is caused by extreme and outrageous conduct, expert medical testimony ordinarily is not required. See, Chandler v. Denton, 1987 OK 38, 741 P.2d 855, 867. “In most cases, jurors from their own experience are aware of the extent and character of the disagreeable emotions that may result from a defendant’s outrageous conduct. Severe emotional distress may be shown either by physical manifestations of the distress or by subjective testimony.” Id.; see also, Bennett v. City Nat., 549 P.2d at 398. However, if the question were whether mental anguish caused physical injury, medical testimony would be required. Id. at 399.
Measure of damages: In Pacific Mutual Life Insurance Co. of California v. Tetirick. 1938 OK 658, 89 P.2d 774, an insurance representative went to the home of an insured recovering from a nervous breakdown and, in a “boisterous and obstreperous manner”, served notice of cancellation of disability benefits. Because, as a matter of law, the acts were “… not necessarily unlawful in themselves, not calculated under normal circumstances to produce any dire consequences”, the court found the jury instructions omitted the essential elements of wrongful intent or motive and wantonness to support a verdict of intentional infliction of emotional distress. Id. at 776. In a lengthy concurring opinion, Justice Davison disagreed with the conclusion that the acts were necessarily lawful and emphasized a jury’s role in determining malice. Id. at 780. He noted even lawful acts could become tortious if, for example, they involved trespass or breach of the peace at the plaintiff’s home. Id. at 781. When an act is unlawful, the plaintiff need not prove the defendant intended it; “…for every man is presumed to know the law and to intend the legal consequences of his acts.” Id. The justice also observed injuries to the nervous system are physical, quoting a California case: “The nerves and nerve centers of the body are a part of the physical system, and are not only susceptible of lesion from external causes, but are also liable to be weakened and destroyed from causes primarily acting upon the mind.” Id. at 777. A “contemporaneous physical injury” may be an injury to the nervous system as well as an injury to the bones or muscles. … [It may also be] “’contemporaneous’ even though the objective symptoms and ultimate results thereof may not appear until long afterwards …” Id. As explained in Chandler, 741 P.2d at 867: “Much of this anguish simply could not be measured in terms of medical expenses; indeed, the very nature of the tort of outrage makes it impossible to quantify damages by reliance mainly on expert medical evidence or by a mere addition of the incurred medical expenses.”
Limitations: The 2-year statute of limitations applies to intentional infliction cases. Williams v. Lee Way Motor Freight, Inc., 1984 OK 64, 688 P.2d 1294, 1295.
Jury instructions: As in any type of case, it is a good practice to consult the jury instructions on the cause of action when drafting the petition. OUJI-CIV reflects the common law developed for IIED. OUJI-CIV 3d Nos. 20.1 – 20.4.
–Lynn B. Mares