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The Tort of Outrage or “Orneriness”

Severe emotional distress as a consequence of an outrageous act gives rise to a separate cause of action for intentional infliction of emotional distress (“IIED”), a tort that is exceptionally difficult to prove and generally may not be compensable through a tortfeasor’s liability insurance.  (However, intentional infliction scenarios may amount to civil-rights violations, domestic abuse, employment discrimination, unfair debt collection, wrongful discharge or other causes of action, which are not discussed here.)

Early Oklahoma cases presaged intentional infliction actions.  In St. Louis-San Francisco Ry. Co. v. Clark, 1924 OK 881, 229 P. 779, an injured soldier missed his train and was stranded because of a ticket agent who subjected him to verbal abuse.   “…[W]e think it is clear that the agent understood that the plaintiff was a wounded soldier, sick and suffering, and trying to get to the government hospital for treatment.”  Id. at  780.  His damages naturally flowed from the defendant’s acts:   “’General damages are those which naturally and necessarily result from the wrongful act or omission, that is to say, those which are traceable to, and the probable and necessary result of the injury, or which the law implies or presumes to have accrued from the wrong complained of.  Though they are frequently spoken of as necessarily resulting from the wrong, this does not mean that they are such only as must a priori, inevitably, and always result therefrom.  It is enough if, in the particular instance, they do in fact result from the wrong directly and proximately, and without reference to the special character, condition or circumstances of the person wronged. The law then, as a matter of course, implies or presumes them as the effect which in the particular instance necessarily results from the wrong.’”  Id.  “It takes no argument to show that excitement and anger caused by rough insult are sufficient to produce physical injury to a human being, and especially to one already broken and suffering from the effects of poisonous gas to lungs and heart.  We think the testimony sufficient to show physical injury, and the verdict should be sustained on this issue.”  Id. at 782.  Expert testimony would not have been required to describe his suffering.  Id.

Another precursor to the tort was the divorce case, Mashunkashey v. Mashunkashey, 1941 OK 113, 113 P.2d 190, in which mental pain was alleged as an element of damages in inducing the plaintiff to enter a bigamous marriage.  The court said, “Injury to reputation will support an action for damages; but mental pain and suffering alone will ordinarily constitute but an element of damages. The latter is seldom a sufficient basis upon which to predicate an action.… But mental pain and suffering may constitute the basis of an independent action in cases of wilful wrong of the character where mental suffering is recognized as the ordinary, natural and proximate result of such wrong. … To fraudulently induce one to enter into a bigamous marriage contract would constitute such a wrong, and the resulting mental pain and suffering would support an independent action for damages.”  Id. at 191.

Cause of action recognized:  The separate tort of IIED was first recognized in Dean v. Chapman, 1976 OK 153, 556 P.2d 257, which quoted from Comment d to §46, Restatement of Torts (Second):  “‘The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous.  It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.  Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. * * *.  The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language. . . .’”  Dean, 556 P.2d at 261.  The plaintiff in Dean did not have an action for intentional infliction when she alleged the medical examiner mishandled the autopsy of her father’s body because the medical examiner’s actions were authorized by law.  Id. at 260.  Compare, McPosey v. Sisters of the Sorrowful Mother, 1936 OK 346, 57 P.2d 617 (mental anguish allowable when treatment of body was not in accordance with the law).

The court in Floyd v. Dodson, 1984 OK CIV APP 57, 692 P.2d 77, 79, made it clear behavior must be more than unreasonable; actions to foreclose a lien must be “extreme and outrageous” to amount to IIED.  Id.  As explained in Munley v. ISC Financial House Inc., 1978 OK 123, 584 P.2d 1336, 1338, IIED reflects “… an attempt to strike a medium between some of the merely unpleasant aspects of human interpersonal relationships on the one hand and clearly unacceptable conduct on the other. There is simply no room in the framework of our society for permitting one party to sue on the event of every intrusion into the psychic tranquility of an individual.  If recovery for damage done is to be afforded at all, there must be some test by which to weed out those suits premised on mere discord between individuals while preserving those where the conduct of individuals involved has clearly exceeded tolerable bounds of social deportment.”

In Breeden v. League Services Corp., 1978 OK 27, 575 P.2d 1374, the plaintiff debtor could not recover for mental anguish caused by bill collectors’ threatening letters and a phone call.  “The number of calls and letters were not excessive, nor were the calls made at unreasonable times, nor was the inconsiderate language so outrageous or extreme as to give rise to liability.”  Id. at 1378.  The court explained the judiciary’s reluctance to recognize the tort:  “Because of the fear of fictitious and or trivial claims and the difficulty of setting up satisfactory boundaries to liability, the law has been slow to afford independent protection to the interest of freedom from emotional distress standing alone. It is only recently that the law has fully recognized extreme or outrageous conduct, which intentionally or recklessly causes severe emotional distress, as a separate and distinct basis for tort liability without the presence of elements necessary to other torts, such as assault, false imprisonment, trespass to land or the like.”  Id. at 1376.  “The general state of the law is succinctly summarized at Section 46, Restatement of Torts (Second), 1965, which provides in part: … ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.’” Id.  “Comment d to that Section provides in part:  ‘ * * * Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’  The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. … There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. …’”  Id.  The court noted, “If the law allowed liability based upon mere insults or indignities, there would be great danger of frivolous claims.”  Id.  “Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’”  Id. at 1377.

Distress must be extreme:  Quoting from the Restatement, the Breeden court described severe emotional distress:  “Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.  Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed…. The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge.”  Id. at 1377-78 (f.n.6).

Roles of judge and jury:  The Breeden court delineated the duties of judge and jury:  “The court, in the first instance, must determine whether the defendant’s conduct may reasonably be regarded so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where, under the facts before the court, reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether the conduct in any given case has been significantly extreme and outrageous to result in liability. Likewise, it is for the court to determine, in the first instance, whether based upon the evidence presented, severe emotional distress can be found.  It is for the jury to determine whether, on the evidence, severe emotional distress in fact existed.”  Id. at 1377-1378 (f.n.5).

Elements of the tort:  The right to recover is not dependent on physical injury.   Williams v. Lee Way Motor Freight, 1984 OK 64, 688 P.2d 1294, 1296.  “To recover damages for intentional infliction of emotional distress, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.”  Computer Publications v. Welton, 2002 OK 50, 49 P.3d 732, 735.  In that case, the court found a jury question existed when a former boss, who had had an intimate relationship with the plaintiff, harassed her for 2 years, causing extreme fright and physical manifestations.  Id. at 736.  She became even more frightened when the stalker’s therapist suggested she get a protective order.  Id. at 737.  “The trial court’s gatekeeper role with regard to the second and fourth elements of the tort of intentional infliction of emotional distress ensures that only valid claims reach the jury under the appropriate legal standards.”  Id. at 735.

Independent tort, not just an element of damages:  The tort of outrage is an independent tort.  Eddy v. Brown, 1986 OK 3, 715 P.2d 74, 76 (conduct of supervisors who ridiculed employee for work as union steward was not so extreme and outrageous to meet standards of tort-of-outrage).  The court said, “Not every abusive outburst or offensive verbal encounter may be converted into a tort; on the contrary, it would be indeed unfortunate if the law were to close all the safety valves through which irascible tempers might legally blow off steam. The outrageous and extreme nature of the conduct to be examined should not be considered in a sterile setting, detached from the milieu in which it took place. The salon of Madame Pompadour is not to be likened to the rough-and-tumble atmosphere of the American oil refinery. ‘There is a difference between violent and vile profanity addressed to a lady, and the same language to a Butte miner and a United States marine.’ Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874, 887 [1939].”  Id. at 77.  “The primary objections to the adoption of this tort were, and still remain, the difficulty of proving causation, the danger of fraudulent claims, and the fear of a flood of litigation.”  Miller v. Miller, 1998 OK 24,956 P.2d 887, 899.  “Prosser strongly criticized the continued resort to subterfuge in cases involving emotional distress and advocated acknowledging the real basis of the action, facetiously suggesting the rather unorthodox name of “orneriness” for the new tort.”  Id. at 899-900.  “[T]he American Law Institute announced in 1948 its approval of a new tort which would impose liability upon ‘one who, without a privilege to do so, intentionally causes severe emotional distress to another.’  … The tort of intentional infliction of emotional distress has now been adopted in almost every state, and the vast majority of those states have adopted the Restatement formulation.”  Id. at 900.  The court quoted from a Texas opinion:  “’Proving that conduct is or is not outrageous is virtually impossible…. The issue is certainly not a factual one, like whether the traffic light was red or green, on which a witness can be called to testify. It is a matter of opinion, … Whether a judge or a jury decides the issue of outrageousness, neither has a standard for doing so. Without evidence or rules to guide a decision, both can resort only to their own views, and their own prejudices…. Ordinarily the law forbids factfinders from relying upon personal prejudices in deciding a case, but with this tort there is no alternative.’”  Id. at 901 (f.n.46)

–Lynn B. Mares

This discussion is continued in part 2.

Abel Law Firm (405) 239-7046