From: tzs@stein.u.washington.edu (Tim Smith)
Subject: Re: How Can I Really Annoy Someone?
Organization: University of Washington, Seattle
Distribution: usa
Date: Fri, 16 Oct 1992 04:35:04 GMT

sethb@fid.morgan.com (Seth Breidbart) writes, in response to me:
>Suppose I learn that you really, really dislike public displays of
>affection.  Since I want to annoy you, I walk along the sidewalk
>across the street from your house and stop to kiss my wife
>(affectionately, not lewdly) directly across from your house, where
>you'll see us because you're sitting on your front lawn.
>
>I have "intentionally inflicted emotional distress" (depending on just
>how much you dislike public displays of affection).  Do you really
>think a lawsuit against me for kissing my wife in public will
>accomplish anything other than getting you laughed out of court (and
>possibly your lawyer fined)?  (If you really want emotional distress,
>let's assume my wife dumped you in order to marry me.  Now that kiss
>can really distress you.)

Two points before I begin.  (1) Note that I was not necessarily agreeing
that IIoED was something for which it is reasonable to sue someone.  Your
tone ("Do you really agree") seems to indicate that you think I think that,
and you think I'm being silly.  I was trying to say what the law *is*, not
what I think it *should be*.  (2) In what follows, keep in mind that I'm
merely a first year law student -- my torts class has met only about 10
times.  Don't believe anything I say.  My only qualification beyond layman
in what follows is that I have a copy of "Prosser & Keeton on Torts" and
so, unlike laymen, I'm directly misinterpreting things, rather than
indirectly misinterpreting things!

That said, here's a summary of what Prosser and Keeton say.  I'll include
some of the historical development, because they say that this is still a
developing area of law.  I'm using the "read along and summarize interesting
points as a find them" method, so the following is a little bit disjointed.
Sorry.

They start out with a discussion of how IIoED developed out of cases that
involved common carriers.  At first, the cases dealt with rude people insulting
passengers.  This was extended to rude dealings with pre-passengers (e.g., the
ticket agent was very insulting and humiliated the passenger *before* selling
the ticket).  We are in the 1800's here.  Liability spread to innkeepers.

Ordinary defendents, however, are not liable for mere insult, annoyance, or
even threats, unless there are other circumstances of aggrevation.

P&K mention that insults can function as a safety valve through which
"irascible tempers may blow off relatively harmless steam" thus perhaps
avoiding more dangerous conduct.  Another problem they point out with
making IIoED too easy to claim is that for petty insults and indignities, it
would be hard to prove the the distress is geniune, serious, and reasonable.

If there is extreme misconduct, however, recovery is allowed.  The leading case
was a man who amused himself by telling a woman that her husband had been in
an accident, and was lying somewhere with both legs broken, and that she
needed to rush out in a cab to help him.  She did not take this well.

As more of these kind of cases came up, court struggled to treat them as
other torts--assault, battery, false imprisonment, invasion of the right
of privacy, and others.  Around 1930, they began to recognize that intentional
infliction of mental disturbance by extreme and outrageous conduct was itself
a cause of action.

"So far as it is possible to generalize from the cases, the rule which seems
to have emerged is that there is liability for conduct exceeding all bounds
usually tolerated by decent society, of a nature which is especially
calculated to cause, and does cause, mental distress of a very serious
kind.  The requirements of the rule are rigorous, and difficult to
satisfy.  Yet, such extreme outrage has been found..."  Some examples are
given where such behaviour has been found, such as "spreading the false
rumor that the plaintiff's son had hanged himself" and (in a different
case!) "wrapping up a very gory dead rat instead of a loaf of bread, for
a sensitive soul to open."  [Since I'm sure that many people are going to
want to rush out to a law library and look that one up, it's Great Atlantic
& Pacific Tea Co. v. Roch, 1930, 160 Md. 189, 153 A. 22.]

Extreme and outrageous conduct can arise also from abusing some position of
power, rather than the act itself.  An example where this happened was where
a schoolgirl was bullied with threats of prison and public disgrace into
signing a confession of immoral misconduct.  It is on this basis that tort
action has been used against high-pressure collection agencies.  [From the
examples given, it sounds like it might work against telemarketing slime...
does anyone know if anyone has tried this?]

"Sill another basis on which extreme outrage can be found is the defendent's
knowledge that the plaintiff is especially sensitive, susceptible and
vulnerable to injury through mental distress at the particular conduct."
[Is this your kissing case above?]  A footnote mentions the case Nelson
v. Crawford, 1899, 122 Mich. 466, 81 N.W. 335, which is over "hysterical
fright at man dressed in woman's clothing") [I am *NOT* making this up!]

In the great majority of cases, defendent inflicted the distress intentionally
(using the normal tort definition of intentional, which is that the defendent
either wanted it to happen, or was substantially certain that it would happen).
In a few cases, liability has been broader.  An example given is a case from
Iowa where "the defendent decided that it would be a good idea to commit
suicide by cutting his throat in the plaintiff's kitchen, and she returned
to be confronted with his corpse, with blood all over the premises."  When
P&K mention that case, they say in a footnote "Compare the appalling story
in Mahnke v. Moore, 1951, 197 Md. 61, 77 A.2d 923, where, however, the
shock to the child was so certain that it clearly was intentional."  [It
is statements like this that make reading a Torts book interesting.  I'll
be heading off to the library after I post this...does anyone want me to
report back on what the shock to the child was?]

>It seems that whether you can sue me depends on just what I do in
>order to inflict the emotional distress.

Exactly.

--Tim Smith
Newsgroups: misc.legal,alt.activism