The performance of an extreme and outrageous act that causes the plaintiff to suffer serious mental distress.
To prove a case for intentional infliction of emotional distress, a plaintiff must prove each of the following elements:
- That defendant’s conduct was outrageous;
- That defendant intended to cause plaintiff emotional distress; or, that the defendant acted with reckless disregard of the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred;
- That plaintiff suffered severe emotional distress; and
- That defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress.
ELEMENT NO. 1: Outrageous Conduct
The courts define “outrageous conduct” required to state an IIED claim as conduct that is so extreme that it goes beyond all possible bounds of decency and which a reasonable person would regard as intolerable in a civilized society.
Importantly, mere trivialities such as indignities, annoynaces, hurt feelings, or bad manners cannot support a claim for IIED.
Churchill v. Winter Chevrolet, No. C-04-0489 (N.D. June 9, 2005):
The elements of a cause of action for intentional infliction of emotional distress are: 1) extreme and outrageous conduct by the defendant; 2) intention to cause or reckless disregard of the probability of causing emotional distress; 3) severe emotional suffering; and 4) actual and proximate causation of the emotional distress.
In order for conduct to be outrageous it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” The Supreme Court of California has relied on the Second Restatement of Torts for the general proposition that conduct is not outrageous where someone’s feelings are hurt from “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Conduct that is outrageous is considered the most offensive, and conduct that is irritating, insulting, or even distressing must “simply be endured without resort to legal redress.”
California courts have generally recognized three circumstances where conduct may be deemed outrageous. First, conduct may be outrageous if the actor abuses a relationship or position which gives him the power to hurt another’s interest. Id. For example, if an employee asserts a claim for intentional infliction of emotional distress against his supervisor or employer, he is entitled to a greater degree of protection than if the parties were strangers.
Second, if the actor knows that a person is susceptible to mental distress, because of some physical or mental condition or peculiarity, the actor’s conduct may be considered outrageous if he acted intentionally. Cole, 43 Cal. 3d at 155 n.7; Restatement (Second) of Torts § 46 comment f (1965) (“The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.”). For example, a trier of fact could reasonably conclude that an African American plaintiff is particularly susceptible to emotional distress from racial epithets. Alcorn, 2 Cal. 3d at 498 (reversing a dismissal of an emotional distress claim where the plaintiff’s foreman shouted racial slurs in a rude manner before firing the plaintiff because the African-American plaintiff could be viewed as having a general susceptibility to emotional distress from racially discriminatory conduct). However, the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough to be outrageous. Restatement (Second) of Torts § 46 comment f.
Third, if an actor acts intentionally and unreasonably, and should know his conduct is likely to result in illness from emotional distress, that behavior can be considered outrageous. Cole, 43 Cal. 3d at 155 n.7; see also Bowden v. Spiegel, Inc., 96 Cal. App. 2d 793, 795 (1950) (reversing a demurrer that was decided in favor of the defendant where the defendant called the neighbor of the plaintiff at eleven o’clock at night to summon the plaintiff for an emergency call, advised the plaintiff to prepare for a terrible shock, and threatened to take her to court if she didn’t pay a bill that she did not in fact owe); Vargas v. Ruggiero, 197 Cal. App. 2d 709, 721 (1961) (holding that defendant’s behavior, screaming at the pregnant plaintiff outside of her house, intentionally entering her house without permission, shouting angrily and loudly, and remaining in her house for several hours, could constitute outrageous conduct reasonably related to plaintiff’s resulting miscarriage); State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal. 2d 330, 335 (1952) (upholding a judgment granting damages for intentional infliction of emotional distress where the cross-defendant, president of an association of rubbish collectors, summoned the cross-plaintiff to a meeting of the association and, in the presence of an intimidating group of associates, told the cross-plaintiff that if he did not comply with their requests that they would beat him up, destroy his truck, and put him out of business).
Davidson v. City of Westminister, 32 Cal. 3d 197 (1982):
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.
Molko v. Holy Spirit Assn., 46 Cal. 3d 1092 (1988):
Conduct is extreme and outrageous when it “`”exceeds all bounds [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress. . . .”‘” Liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” “`”. . . Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .”‘”
Agarwal v. Johnson, 25 Cal.3d 932 (1979):
“The modern rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress. Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability `does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . There is no occasion for the law to intervene . . . where some one’s feelings are hurt.’ Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (Prosser, Law of Torts, supra, at pp. 57-58; Rest.2d Torts, § 46, coms. e, f Fletcher v. Western National Life Ins. Co., supra, at p. 397 (insurance agent’s threatened and actual refusals to pay; threatening communication in bad faith to settle nonexistent dispute); Alcorn v. Anbro Engineering, Inc., supra, at p. 496 (supervisor shouting insulting epithets; terminating employment; humiliating plaintiff); Golden v. Dungan, supra, at p. 305 (process server knowingly and maliciously banging on door at midnight).)”
ELEMENT NO. 2: Defendant Acting with Reckless Disregard
Courts generally find a defendant acting in reckless disregard in causing emotional distress where: 1. the defendant knew that emotional distress would probably result from his conduct; or 2. the defendant gave little or no thought to the probable effects of his conduct.
KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023 (1995):
Code of Civil Procedure section 437c, subdivision (e) is dispositive on the question of intent. It provides in relevant part: “summary judgment may be denied in the discretion of the court . . . where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”
In any event, it is not essential to liability that a trier of fact find a malicious or evil purpose. It is enough that defendant “devoted little or no thought” to the probable consequences of his conduct. (Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1487.) In dealing with children under the age of 12, the trier of fact reasonably could find that “`[l]ittle or no thought’ constitutes . . . `reckless disregard’ of the rights and sensitivities of others.” (Id., at p. 1488.)
ELEMENT NO. 3: Plaintiff Suffering Severe Emotional Distress
The “severe emotional distress” required to state an IIED claim includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Importantly, the emotional distress required for IIED must be so substantial or long-lasting that no reasonable person in a civilized society should be expected to bear it. However, a plaintiff is not required to prove physical injury in order to recover for IIED.
Hughes v. Pair, 46 Cal.4th 1035 (2009):
With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.
Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376 (1970):
Defendants urge that the testimony of plaintiff himself establishes at most that he was only mildly upset by defendants’ conduct. We do not agree. Plaintiff has only a fourth grade education and, from an examination of his testimony, is not overly articulate. The jury and the trial judge, who denied the motion for judgment notwithstanding the verdict, observed plaintiff and heard his testimony and were, as a result, in a far better position than we to judge the severity of plaintiff’s emotional distress. (11) It is true that plaintiff’s testimony did not indicate that he suffered any traumatic emotional distress of the character of shock, horror or nausea, but the requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.
Plaintiff’s testimony gives rise to an inference that he was frightened, worried and upset by defendants’ false charges against him of intentional misrepresentation, by defendants’ demand for repayment of a substantial sum of money impliedly threatening legal action against him and by the notification that the $150 monthly payments were being discontinued. As a result of defendants’ communications, he was worried and anxious about losing his home and his family lacking food and clothing. Plaintiff’s worry and anxiety were inferably substantial in quantity, especially in view of his disabled and impecunious condition, which was fully known to defendants when they acted. Susceptibility of the plaintiff to emotional distress and a defendant’s awareness thereof, have often been mentioned as significant in determining liability.
Moreover, as pointed out previously, the duration of the emotional distress is one of the factors to be considered in determining its severity. (Rest.2d Torts, § 46, com. j., supra), and the jury could reasonably infer that plaintiff’s worry and anxiety persisted for many months following defendants’ letter of August 25, 1966, during their continued recalcitrance.
Grimes v. Carter, 241 Cal.App.2d 694 (1966):
In California, “One who has been wrongfully and intentionally subjected to embarrassment, humiliation, fear or other forms of mental anguish may recover compensatory damages even though [she] has suffered no physical injury,” and “. . . the right to compensation exists even though no monetary loss has been sustained.”
“Intentional infliction of emotional distress, without physical trauma, can be a ground of liability, but only when the defendant’s conduct is `outrageous’; or `has gone beyond all reasonable bounds of decency’ Where, as here, physical harm has not resulted from the emotional distress, the courts `tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious.'”