NO. 94-304

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DIANNE POYNTER SACCO,

Plaintiff and Appellant,

-vHIGH COUNTRY INDEPENDENT PRESS, INC.,

GLENN F. SORLIE, DEVON ANN SORLIE,

and RICKY L. DIGHANS,

Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Stephen C. Pohl, Bozeman, Montana

For Respondents:

Michael J. Lilly, Bozeman, Montana; Barry G.

O'Connell, Bozeman, Montana

Heard: February 14, 1995

Submitted: February 16, 1995

Decided: May 19, 1995
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from several Eighteenth Judicial District

Court, Gallatin County, orders on motions for summary judgment. we

reverse and remand.

The following are issues on appeal:

I. Did the District Court err by granting Dighans' motion for

summary judgment with respect to Sacco's claim that Dighans

violated Sacco's civil rights under 42 U.S.C. 5 1983?

II. Did the District Court err by granting Dighans' motion for

summary judgment on the issue of negligent infliction of emotional

distress?

III. Did the District Court err by granting the Sorlies', High

Country Independent Press (HCIP's) and Dighans' motions for summary

judgment on the issue of intentional infliction of emotional

distress?

IV. Did the District Court err by granting the Sorlies' and

HCIP's motion for summary judgment on the issue of defamation?

V. Did the District Court err by granting the Sorlies',

Dighans' and HCIP's motions for summary judgment on the issue of

malicious prosecution?

FACTUAL AND PROCEDURAL BACKGROUND

Parties

Since this case is being remanded for trial, it is not

appropriate that we set forth the facts of this case in any more

detail than is necessary to resolve the legal issues raised.

At the outset, however, we outline the parties to assist in an

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overall understanding of the case. The plaintiff, Dianne Poynter

Sacco (Sacco) was employed at the High Country Independent Press

newspaper in Belgrade, Montana, as a photographer/reporter. She

left her position on October 19, 1989. High Country Independent

Press, Inc. (HCIP), a corporation, owns the newspaper and Devon and

Glenn Sorlie (Sorlies) are the officers and stockholders of HCIP.

After Sacco left the employ of HCIP, the Sorlies made allegations

to the Belgrade Police that Sacco had stolen proof sheets and

photographs from the HCIP offices. Ricky Dighans (Dighans) is a

sergeant with the Belgrade Police Department and was the

investigating officer assigned to the case against Sacco brought as

result of the Sorlies' allegations.

The following allegations form the basis of Sacco's complaint

filed August 16, 1991:

1. "Between the dates of June 27, 1990 and December 31, 1990,

Defendants HCIP and Sorlies maliciously conspired to bring a

criminal prosecution against Plaintiff, and . . instituted a

criminal action against Plaintiff by supplying to Defendant Dighans

false and misleading information." The false information was that

the plaintiff stole certain photographic negatives and contact

sheets from HCIP between October 19, 1989 and June 28, 1990.

2. Defendant Dighans swore to a complaint before the Belgrade

City Judge, alleging that Sacco committed the offense of theft of

photographic negatives and proof sheets and Dighans should have

known that the information in the complaint was false. Dighans

knew or should have known that the photographs and negatives were

3
owned by the plaintiff. Further, Dighans knew or should have known

that there was a lack of probable cause for any criminal

prosecution.

3. Defendant Glenn Sorlie "falsely, maliciously, and with the

intent of injuring Plaintiff and her reputation, informed

Plaintiff's employer that Plaintiff had stolen several photographs

from [HCIP] .'I Additionally, the Sorlies provided "additional false

and misleading information to Belgrade City Attorney William

Schreiber," which resulted in the continuation of criminal

proceedings against Sacco. Glenn Sorlie also approached Sacco at

her place of employment and accused her of stealing the photographs

from HCIP, threatened her and caused her to fear for her safety.

4 . The defendants "acted with malice and without probable

cause in causing the Complaint to be filed against, and in

instigating and continuing the prosecution of Plaintiff" and that

the statements made by defendants Sorlies to Dighans, Schreiber and

plaintiff's employer were "false, defamatory and damaging to

Plaintiff."

5 . The defamatory statements caused great injury to her

reputation, and she has suffered great mental anguish, physical

discomfort and inconvenience as well as incurring expenses in

defending the charge.

The criminal charges filed against Sacco were eventually

dismissed because it was subsequently determined that prosecution

of the alleged criminal conduct was barred by the statute of

limitations.
Sacco alleged the following five counts in her complaint:

1. Malicious Prosecution;

2. Defamation

3. Intentional Infliction of Emotional Distress

4. Negligent Infliction of Emotional Distress

5. Civil Rights Violation

Eventually, motions for summary judgment on all counts of the

complaint were filed by the defendants. In a number of orders

filed by the District Court, the various summary judgment motions

on all five counts of the complaint were granted. Sacco appealed

from these orders on May 20, 1994. We now address the question of

whether summary judgment was correctly granted on the five counts

of Sacco's complaint.

STANDARD OF REVIEW

Our review of a summary judgment order is de nova.

Summary judgment is proper only when no genuine issue of

material fact exists and the moving party is entitled to

a judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The initial burden is on the moving party to establish

that there is no genuine issue of material fact; and once

met, the burden shifts to the party opposing the motion

to establish otherwise.

Spain-Morrow Ranch Inc. v. West (1994), 264 Mont. 441, 444, 872

P.2d 330, 331-32. (Citations omitted.)

INTRODUCTION

Sacco alleged that defendant Dighans committed violations of

her civil rights under 42 U.S.C. 5 1993. She also alleged that

Dighans committed the tort of negligent infliction of emotional

distress. She alleged that the Sorlies, HCIP and Dighans committed

the tort of intentional infliction of emotional distress. She

further asserted that HCIP and the Sorlies defamed her and finally,

that all defendants engaged in malicious prosecution. We address

5
all five counts and the grant of summary judgment on each in turn.

I. CIVIL RIGHTS VIOLATION UNDER 42 U.S.C. 5 1983 - COUNT V

SaCCO argues that the District court erred by granting

Dighans' motion for summary judgment as to Count V of the

complaint, which alleged violation of Sacco's civil rights under 42

U.S.C. § 1983. Dighans argues that he is protected from Sacco's

claims by the doctrine of qualified immunity. The District Court

agreed with Dighans and concluded that Dighans had probable cause

to prepare and file the complaint against Sacco. The court also

concluded that Dighans had complied with the "objective

reasonableness'1 mandate set forth in Malley v. Briggs (19861, 475

U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271. We disagree.

Under Harlow v. Fitzgerald (19821, 457 U.S. 800, 102 S.Ct.

2727, 73 L.Ed.2d 396, government officials performing discretionary

functions are shielded from liability for civil damages only where

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

knowledge. Harlow, 457 U.S. at 818. Sacco contends that in the

instant case, her clearly established right to be free from arrest

without probable cause was violated by Dighans. She further states

that no reasonably competent officer would have concluded from the

complaint submitted in the instant case that probable cause existed

for an arrest.

Harlow presents a two-pronged test to determine whether an

official will be granted qualified immunity - first, we must

consider whether a clearly established right has been violated and
second, we must determine whether a reasonable person or official

would have known that his conduct violated that right. This test

was made applicable to state police officers in Malley. Malley,

475 U.S. at 341.

As stated above, Sacco claims that her right to be free from

arrest without probable cause, was violated by Dighans. The right

to be free from arrest except upon probable cause has been clearly

established in the Ninth Circuit. See Kennedy v. Los Angeles

Police Dept. (9th Cir. 1989), 901 F.2d 702, 706; Barry v. Fowler

(9th Cir. 1990), 902 F.2d 770, 772-73; McKenzie v. Lamb (9th Cir.

1984), 738 F.2d 1005, 1007; Gilker v. Baker (1978), 576 F.2d 245,

247; Haupt v. Dillard (D.Nev. 1992), 794 F. Supp. 1480, 1490; Sunn

v. City and County of Honolulu (D. Hawaii 1994), 852 F. Supp. 903,

906-07. Accordingly, because the right Sacco alleges to have been

violated is a clearly established right, the first prong of the

Harlow test is satisfied. Since Sacco's arrest was the result of

Dighans' application for and his obtaining an arrest warrant on the

basis of his complaint, the relevant question then becomes whether,

"on an objective basis, it is obvious that no reasonably competent

officer would have concluded that a warrant should issue. . .'I

Mallev, 475 U.S. at 341.

The Notice to Appear and Complaint prepared by Dighans and

filed against Sacco stated that:

The [Defendant Saccol is charged with violating

[Montana Code] Section # 45-6-301 . . in that said

defendant did knowingly or purposely or negligently

commit the offense of theft of photo negatives/proof

sheets between Oct. 19, 1989 and 28 June 1990 from High

Country Independent Press. To wit: wildlife photos.

7
The Notice to Appear and Complaint was signed by Dighans,

issued by the Belgrade Police Department, dated November 5, 1990,

and signed by City Judge Gordon L. Smith.

In his deposition, Judge Smith stated that while he could not

remember the specifics of the determination of probable cause, it

was his practice to place the officer under oath and that the

officer would swear "to the truthfulness of this Complaint and to

those facts that he had entered on the Complaint." Judge Smith

stated that he could not remember anything that Dighans or the City

Attorney had told him other than what was set forth in the Notice

and Complaint.

Also during Judge Smith's deposition, Sacco asked whether

Dighans had advised the deponent, Judge Smith, of certain specific

facts when he applied for the arrest warrant. Sacco asked whether

Dighans told the magistrate that he (Dighans) had conversed with

Sacco and that she had informed him that she was the owner of the

negatives and proof sheets. She also asked if Dighans told Judge

Smith that Sacco's attorney had written a letter to Dighans

informing him that Sacco owned the photo negatives in question.

Sacco also queried as to whether Dighans had informed Judge Smith

that Sacco had purchased the film used to take the photos and shot

the film on her own time. Last, Sacco questioned Judge Smith as to

whether Dighans ever informed him (Smith) that the complaining

witnesses (Sorlies) had written a letter to the Montana

Unemployment Division stating that they had an arrangement with

Sacco whereby she could use their photography equipment and
materials in exchange for their use of her photos. Judge Smith

testified that he did not remember being provided with any of that

information.

Dighans' affidavit filed in opposition to Sacco's Motion for

Summary Judgment recounts the details of his investigation,

including his various discussions with Sorlies and witnesses and

with the City Attorney prior to making application for the arrest

warrant. On the matter of what he swore to Judge Smith to

establish probable cause, however, Dighans' affidavit simply states

that he "presented [himself] to Belgrade City Judge Smith and under

oath swore to the truth of the matters set forth in the Complaint,"

and then orally asked that the warrant be issued.

We conclude that the Notice to Appear and Complaint does not

set forth sufficient facts which, in combination with Judge Smith's

examination of Dighans, satisfy the statutory requirement that it

appear "from the contents of the [written] complaint and the

examination [on oath] of the complainant and other witnesses, if

any, that there is probable cause to believe that the person

against whom the complaint was made has committed an offense." See

5 46-6-201, MCA (1989), the statute in effect in November 1990,

when Dighans applied to file the complaint and obtain the arrest

warrant against Sacco.

In State ex rel. Wicks v. District Court of Tenth J.D. (1972),

159 Mont. 434, 498 P.2d 1202, interpreting that same language from

§ 95-603, RCM 1947, we held unlawful the issuance of an arrest

warrant where the complaint of the deputy prosecutor, under oath,

9
disclosed nothing more than his "bald conclusion" that the

defendant committed the offense charged on a date certain and where

neither the complainant nor justice of the peace could remember

whether the complainant was examined under oath. Wicks, 498 P.2d

at 1203-04. We stated:

The showing of "probable cause" required for issuance of

a warrant of arrest is similar and analogous to the

showing of "probable cause" required for the issuance of

a search warrant. [Citing Application of Gray (1970), 155

Mont. 510, 473 P.2d 5321. As applied to the facts of

this case, such showing must disclose facts which will

enable the magistrate to make a judicial determination of

the existence of probable cause and undisclosed

information possessed by law enforcement officers is

irrelevant.

Wicks, 498 P.2d at 1204.

The complaint, here, sets forth nothing but Dighans'

conclusory statement that Sacco committed the offense of theft of

the photo negatives and proof sheets. There was no affidavit of

probable cause or other written statement of probable cause before

the city judge when the decision was made to issue an arrest

warrant nor were there any underlying facts within the body of the

complaint itself from which the magistrate could make a judicial

determination of the existence of probable cause. Moreover, Judge

Smith testified that he could not remember being provided with any

more information than what appeared on the face of the complaint,

and Dighans' affidavit does not disclose that he provided Judge

Smith with any more information than what was on the face of the

complaint

We hold that what appeared on the face of the complaint is an

insufficient basis, as a matter of law, upon which to premise a

10
finding of probable cause. Wicks , 498 P.2d at 1203-04. If the

officer simply swears to his bald conclusions that the defendant

committed the crime charged without either orally or in writing

swearing to the factual basis for those conclusions, the magistrate

has no legal basis on which to make the statutorily required

finding of probable cause for the issuance of the warrant of arrest

or summons (§ 46-6-201, MCA (1989)). We also conclude that a

reasonably competent officer would have known of that legal

requirement and that such an officer would have concluded that an

arrest warrant could not issue.

Whether, as a result of his investigation, Dighans may have

possessed sufficient information that would have lead a reasonably

competent officer to conclude that there was probable cause to

request an arrest warrant is not the issue. What is critical is

that whatever information Dighans possessed, he did not provide

that information, on oath, to the issuing magistrate. See Wicks,

498 P.2d at 1204, (undisclosed facts possessed by law enforcement

are irrelevant as to the judicial determination of probable cause)

and Gray, 473 P.2d at 536-37, (issuance of search warrant will not

be upheld on basis of information not contained in the affidavit).

Accordingly, it is, likewise, not necessary that we discuss

Dighans' failure to inform Judge Smith of the possibly exculpatory

information that he possessed.

Under Malley, the shield of qualified immunity is lost where

the warrant application is "so lacking in indicia of probable

cause" that it is unreasonable to believe that probable cause

11
exists. Mallev, 475 U.S. at 345. That is precisely the situation

here. Dighans failed to present any facts to Judge Smith on which

a judicial determination of probable cause could be made for the

issuance of the arrest warrant against Sacco. That Judge Smith

issued the warrant, nonetheless, does not exonerate Dighans'

failure. Mallev, 475 U.S. at 345-46.

Accordingly, we hold that the District Court erred as a matter

of law in granting Dighans' summary judgment motion on Sacco's 42

U.S.C. § 1983 claim, and we remand for further proceedings.

INTRODUCTION - TORT OF EMOTIONAL DISTRESS

Sacco alleges two counts of the tort of emotional distress -

negligent and intentional infliction of emotional distress. The

decision to recognize emotional distress as an independent tort has

been in gradual evolution for courts nationwide, and Montana is no

exception. In the past, we have recognized the tort of negligent

infliction of emotional distress as an independent cause of action

in only a limited context. We have also recognized the tort of

intentional infliction of emotional distress as an independent

cause of action but under the traditional analysis of that tort, we

have not encountered a case which would entitle a plaintiff to

damages for the cause of action.

After thoroughly reviewing OUT own case law and the

authorities from other jurisdictions, we conclude that it is

appropriate that we join a multitude of jurisdictions in

recognizing both torts as independent causes of action with

recovery for damages based upon satisfaction of the standard we set

12
forth in the instant case. An independent cause of action for the

tort of infliction of emotional distress will arise under

circumstances where serious or severe emotional distress to the

plaintiff was the reasonably foreseeable consequence of the

defendant's negligent or intentional act or omission. We first

review the development of Montana case law involving emotional

distress issues and then address the formulation of the "test" upon

which an independent cause of action for the tort of emotional

distress must be based.

II. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - COUNT IV

Sacco asserts that the District Court erred by granting

Dighans' motion for summary judgment as to Count IV, Negligent

Infliction of Emotional Distress. Dighans contends that the tort

of negligent infliction of emotional distress has been recognized

by Montana in a very narrowly defined context. He further states

that Johnson v. Supersave Markets, Inc., (19841, 211Mont. 465, 686

P.Zd 209, addressed the concept of emotional distress as an element

of damages, not as a distinct tort. Therefore, according to

Dighans, Sacco was wrong to rely upon Johnson for her contention

that her claim of negligent infliction of emotional distress was

wrongly denied.

Whether the tort of emotional distress may be pled and proved

as an independent "stand alone" cause of action, as distinguished

from being an element of damages in some other tort action, has

been the subject of much discussion and controversy. The

traditional rule has been "that there is no recovery for the

13
negligent infliction of mental distress alone." Rodrigues v. State

(Hawaii 1970), 472 P.Zd 509, 518. Additionally,

[tlhe cases contain the broad statement that there

is no duty to refrain from the negligent infliction of

mental distress. Thus the paramount issue is

characterized as one of duty: whether the plaintiff's

interest in freedom from mental distress is entitled to

legal protection from defendant's conduct. Duty,

however, is a legal conclusion which depends upon "the

sum total of those considerations of policy which lead

the law to say that the particular plaintiff is entitled

to protection." Therefore, in determining the duty

imposed on the defendant, if any, we must weigh the

considerations of policy which favor the plaintiff's

recovery against those which favor limiting the

defendant's liability.

Rodriques, 472 P.2d at 518-19. (Citations omitted.)

The major policy issues which have historically rendered

courts reluctant to allow recovery for emotional distress are

concern over fraudulent claims, a floodgate of litigation and

unlimited liability for defendants. These policy concerns have

served as impediments to recovery for the independent tort of

emotional distress. Clinch and Johnson, Compensation of Emotional

Distress in Montana: Distinctions Between Bystanders and Direct

Victims, 47 Mont.L.R. 479 (1986).

Courts have allowed recovery for emotional distress but only

in limited cases where the genuineness of the mental distress could

be adequately determined, such as recovery for emotional distress

damages upon proof of another cause of action and by plaintiffs who

have suffered physical impact or a physical manifestation of the

emotional distress claimed. Clinch and Johnson at 480-481.

These exceptions to the general rule, however, have not proved

to be the panacea anticipated. Damages for emotional distress with

14
a host cause of action, known as "parasitic" damages, have been

recovered even in cases where the independent action giving rise to

emotional distress damages is trivial. Even in cases where the

courts have required a physical injury or threat of physical injury

in order to recover for emotional distress, plaintiffs have been

allowed to recover where they have suffered only the slightest

impact. Furthermore, even in jurisdictions which require that the

plaintiff physically manifest the emotional impact, slight physical

manifestations will suffice in establishing emotional distress. In

many instances, the exceptions have swallowed the rule and the

dangers of fraudulent claims, opening the floodgates of litigation

and unlimited defendant liability have not been prevented by

requiring that emotional distress be in the form of "parasitic"

damages, or accompany physical injury or present physical

manifestations of emotional distress. Clinch and Johnson at 480-

483.

The types of cases mentioned above concern plaintiffs who were

direct victims of a defendant's negligent conduct. However, there

is another class of plaintiffs for whom courts have allowed

recovery due to the negligence of defendants - "bystander" victims.

Bystander victims are those who observe the injury or death of

another person and suffer resultant emotional distress. Some

courts allow recovery for emotional distress of bystanders only if

the bystander was also "in close enough proximity to an accident to

have been placed in actual physical danger, and, that as a result

of being within the ' zone of danger' a plaintiff-bystander's
emotional suffering was deemed genuine because of the fear of that

physical danger." Clinch and Johnson at 483. The very narrow rule

was eventually expanded based on the principle of foreseeability

that the bystander would suffer emotional distress. However, even

when the bystander exception allowed recovery without physical

injury, compensation was still sometimes denied to a body of

"seemingly deserving plaintiffs." Clinch and Johnson at 483.

We begin our resolution of Sacco's case with a review of

Montana case law on emotional distress involving both bystanders

and direct victims. We discuss Montana case law wherein we have

allowed recovery for emotional distress based on traditional

exceptions to the general rule that there is no recovery for

negligent infliction of emotional distress. Our review includes

those cases where we have allowed recovery for emotional distress

based upon some accompanying physical injury or some physical

manifestations of emotional distress, where recovery for emotional

distress damages has been based upon an independent "host" cause of

action and where recovery for emotional distress has been found for

"bystanders," persons who observe the death or serious injury of

another. We then discuss cases in which we have addressed the tort

of negligent infliction of emotional distress as a distinct cause

of action for persons who have been the direct victims of emotional

distress. As can readily be seen from this review, the case law

demonstrates that courts, including this Court, have struggled with

the issue of how and whether to compensate for emotional distress,

with the resultant development of a body of confusing, unclear and

16
sometimes inconsistent precedent.

Physical Impact Rule

The first case under Montana law involving mental suffering

accompanying physical injury, Kennon v. Gilmer (1885), 5 Mont. 257,

5 P. 847, was discussed by the United States Supreme Court in

Kennon v. Gilmer (1889), 131 U.S. 22. Kennon involved an action to

recover for personal injuries suffered when plaintiff, a passenger

on a stagecoach, was forced to jump from the stagecoach when the

horses became unmanageable, broke the pole of the coach and "took

fright." Kennon, 131 U.S. at 23. Kennon sustained a broken leg in

the fall and the leg was ultimately amputated.

On appeal from a judgment for the plaintiff in the amount of

$20,750, the defendant complained of a jury instruction which

allowed the jury to consider both bodily and mental pain and

suffering, (but not mental pain alone.) The Kennon court, in

affirming the use of the instruction, stated:

But the instruction given only authorized them, in

assessing damages for the injury caused by the defendants

to the plaintiff, to take into consideration "his bodily

and mental pain and suffering, both taken together,"

O1but not his mental pain alone,") and such as

"inevitably and necessarily resulted from the original

injury." The action is for an injury to the person of an

intelligent being; and when the injury, whether caused by

wilfulness or by negligence, produces mental as well as

bodily anguish and suffering, independently of any

extraneous consideration or cause, it is impossible to

exclude the mental suffering in estimating the extent of

the personal injury for which compensation is to be

awarded.

Kennon, 131 U.S. at 26.

Physical Manifestation Exception

In Cashin v. Northern Pacific Ry. Co. (1934), 96 Mont. 92, 28

17
P.2d 862, the plaintiff was hanging clothes just beyond her kitchen

door when there was a blast from work on a nearby railroad line.

The railroad had been using dynamite to remove large boulders from

the pathway of the rail line. The following facts and testimony

are pertinent to our discussion of the Cashin case:

She [the plaintiff, Mrs. Cashin,] testified that she

heard the detonation and saw rocks falling about the

yard; she raised her arms and felt pain between her

shoulders and knew no more until some time later, when

she regained consciousness in a chair in the house.

Dr. J. L. McCarthy, of Butte, described Mrs.

Cashin's condition as he found it shortly after the

blasting and continuing thereafter as that of shattered

nerves from shock comparable to that of shell-shocked

veterans.

Mrs. Cashin testified that, while she had been

nervous before and had been "troubled" by former blasts

so that, at night, she was made nervous by the passage of

the watchman's car on the track as indicating that

another blast might be set off in the night, her present

condition was due to the shock of this last blasting.

Cashin, 28 P.2d at 865. An action was brought to recover for

'I 'severe and violent shock, both of body and mind,' causing

permanent impairment of plaintiff's health." Cashin, 28 P.2d at

865. Plaintiff was awarded $2,000 in damages and the defendant

appealed contending that there could be no recovery for the fright

or shock because there was no physical injury. We held that a

cause of action existed because the plaintiff had suffered a

physical injury in the form of "nervous shock or paroxysm, or a

disturbance of the nervous system" which fell in the category of

physiological, not psychological injury. Cashin, 28 P.2d at 866.

Thus, we concluded that the shock or fright occasioned by the blast

was itself a physical injury

18
Kelly v. Lowney and Williams (19421, 113 Mont. 385, 126 P.2d

486, was a personal injury action wherein the court's instruction

required that the jury consider, in assessing damages, the deceased

plaintiff's:

fright and mental shock, if any, and all pain and

suffering, if any, of mind and body, insofar as caused by

fright and mental shock, if any. Also her, Nellie

Kelly's death. You may also consider any impairment of

the plaintiff's health, physical or mental, as a

consequence of fright or shock, if any, whether the

impairment be permanent or only temporary.

Kelly, 123 P.Zd at 488.

Nellie Kelly had been "injured" when a neighbor's car crashed

into the Kelly home, severely frightening her. Nellie did not come

into physical contact with the car but heard the crash because she

was in the house at the time. After the crash, Nellie was worried,

nervous, could not sleep and would not sleep in her room but slept

in the living room where she was subject to a draft. She died

about six months after the crash from complications from colds,

ostensibly "caught" from sleeping in a drafty place.

At trial, we found error with the above instruction and

remanded the case for a retrial of the cause of action. However,

the Court premised its finding of error on that part of the

instruction which instructed the jury to consider Kelly's death in

assessing the damages. We concluded that the jury should not have

considered Kelly's death because the crash was not a proximate

cause of death and any damages award would naturally be much higher

if the jury considered the plaintiff's death, as well as her

injuries. The Court did state that in Montana, "there may be

19
recovery for damages for personal injuries occasioned by fright or

mental shock though there be no physical contact," citing Cashin.

Kelly, 126 P.2d at 488. Although we did not discuss our reasoning

for allowing the jury to consider the plaintiff's fright and mental

shock, it appears that the Court considered Kelly's fright and

shock to be a physical injury in and of itself as in Cashin.

"Parasitic" Damages

This Court upheld an award for damages for pain and mental

anguish in a case with a host cause of action involving real

property in the form of nuisance, trespass and negligence claims in

French v. Ralph E. Moore, Inc. (1983), 203 Mont. 327, 661 P.2d 844.

Gasoline from the neighboring Texaco station contaminated and

polluted the Frenchs' home and restaurant, forcing the closure of

the restaurant and forcing the French family to live under

uninhabitable conditions. Noting that previous Montana cases had

allowed for the recovery of damages for emotional distress when the

underlying action was injury to real property, the Court "[held]

that damages for mental anguish are recoverable in a negligence

action where the claim is that the defendant has interfered with

the use and enjoyment of plaintiff's land. No sound reason exists

to hold otherwise." French, 661 P.2d at 848.

Damages for emotional distress in a wrongful death action,

were allowed for the first time in Dawson v. Hill and Hill Truck

Lines (1983), 206 Mont. 325, 671 P.2d 589. In Davison, parents

brought suit when their son was killed in a traffic accident. This

Court held that damages for "the sorrow, mental distress or grief

20
of the parents of a deceased minor [child are] recoverable in a

wrongful death action. . .I' DaWsOn, 671 P.2d at 590. The Davison

court addressed the argument that mental distress damages are

difficult to allocate by stating:

Montana allows the estate of a decedent to recover

damages for the decedent's pain suffered prior to death.

Surely a jury which can lawfully weigh such intangible

damage can be trusted to fairly compensate for the grief

suffered by the survivors.

Dawson, 671 P.Zd at 593. The Dawson Court then limited the mental

distress damages in a wrongful death action by stating that 'I [tl he

mental distress for which recovery can be sought under the

rationale of Dawson, is limited to mental anguish, sorrow or grief

resulting from the death. damages which are caused by the loss

of decedent's life." Dawson, 671 P.2d at 593.

The leading case involving emotional distress recovered as

parasitic damages is Johnson v. Supersave Markets, Inc. (1984), 211

Mont. 465, 686 P.Zd 209. In Johnson, plaintiff's wife had written

a check at the Supersave Market which was subsequently returned for

insufficient funds. Plaintiff's wife had signed his name on the

check. After Supersave made a series of efforts to collect the

funds, it assigned the debt to a collection agency and then the

debt was assigned to the Missoula County Attorney's office for

prosecution. At a later date, Johnson made restitution on the

delinquent draft, receiving a receipt for full payment.

At about that same time, the county attorney's office, which

had never been able to contact Johnson, attempted to verify

restitution. Supersave could not confirm or deny restitution but

21
the collection agency denied restitution, and a warrant was issued

for Johnson's arrest. Johnson was stopped in December of 1979, on

an unrelated charge and ultimately, arrested, booked and

fingerprinted for the bad check charge. He was able to post bond

and was released two and one-half hours later. The charges were

subsequently dismissed.

Johnson brought an action for unlawful arrest and negligent

imprisonment. We concluded that Supersave had acted negligently in

two ways - first, in cashing the check without proper

identification and second, in failing to terminate the collection

process upon Johnson's payment of the delinquent draft.

Although we were reluctant to permit damages for "specious

emotional upset," we discussed cases such as Versland v. Caron

Transport (1983), 206 Mont. 313, 671 P.2d 583, and Dawson where we

had allowed recovery for emotional distress, as well as other case

law wherein recovery was allowed when the emotional distress was

intentionally inflicted. We then held that we would adopt a

"species of case approach which [would require] a factual analysis

of each case to determine whether the alleged 'emotional distress'

merits compensation." We stated, 'I [iln determining whether the

distress is compensable absent a showing of physical or mental

injury, we will look to whether tortious conduct results in a

substantial invasion of a legally protected interest and causes a

sisnificant impact upon the person of plaintiff." Johnson, 686

P.2d at 213.

We then applied the test to Johnson and held that Johnson's

22
right to liberty was violated when he was arrested, booked and

charged for issuing a bad check for which he had already made

restitution. "Respondent's right to liberty is legally protected

from such invasion and his humiliation, embarrassment and other

'emotional distress' proximately caused by such intrusion can

certainly be considered substantial." Johnson, 686 P.2d at 213.

Johnson was followed by First Bank (N.A.) - Billings v. Clark

(1989), 236 Mont. 195, 771 P.Zd 84, wherein this Court followed the

rule set forth in Johnson which stated that "[al jury instruction

about damages for emotional distress is warranted, in the absence

of any physical or mental injury, only if the defendant introduced

some proof that itortious conduct1 resulted in 'a substantial

invasion of a legally protected interest and [caused] a

significant impact on the person."' First Bank, 771 P.2d at 91.

We noted, circuitously, that the legally protected interest in the

instant action was "the interest in freedom from emotional

distress." First Bank, 771 P.2d at 91. We ultimately held that:

1. The requirement of a significant impact indicates that

the emotional distress suffered by the victim must be

severe.

.

2. A district court has the duty of determining the

threshold question of whether any proof of such severe

emotional distress exists sufficient to raise a question

of fact for the jury. Absent any such proof, a jury

instruction on damages for emotional distress is

improper.

First Bank, 771 P.2d at 91. (Citations omitted.) The First Bank

Court concluded that the district court had erred in instructing

the jury on emotional distress damages because the evidence

introduced during trial was "insufficient to raise a question of

23
fact about the existence of severe emotional distress," and

therefore, the question of emotional distress damages should not

have reached the jury. First Bank, 771 P.2d at 91.

In Day v. Montana Power Co. (1990), 242 Mont. 195, 789 P.2d

1224, we disallowed recovery of damages for emotional distress

associated with the defendant's negligent damage to real property.

Days claimed that their restaurant was destroyed by fire when

natural gas migrated along an underground service line, accumulated

in the restaurant and was ignited by a pilot light. We recounted

other "parasitic damages" cases and stated that this was not such

a case. We stated that French, although it concerned a host cause

of action as damage to real property, was really a trespass to

property action, which b a legally protected interest. We

reversed the award of damages for emotional distress and held that

"[w]e decline to extend recovery for emotional distress damages to

cases where the defendant negligently damages or destroys real

property and the plaintiff suffers no physical injury. MPC

negligently destroyed the Days' restaurant and Days received

adequate compensation for that destruction." DaY, 789 P.2d at

1227.

Bystander Rule

Versland addressed the question of whether a spouse could

recover for negligent infliction of emotional distress when she

witnessed her husband's traffic collision with the defendant's

semi-truck. We discussed earlier cases from other jurisdictions

which had held that there could be no recovery for emotional

24
distress absent physical impact and cases which held that recovery

was only available for those persons within the "zone of danger."

We then relied upon the case of Dillon v. Legg (1968), 69

Cal.Rptr. 72, 441 P.2d 912, wherein the California Supreme Court

allowed recovery for emotional distress suffered by a mother who

witnessed her child killed by a passing motorist as the child was

crossing the street. The court relied upon the foreseeability that

witnessing the death or injury of a child would cause emotional

distress in a parent. The Dillon court, in forming its test for

recovery for emotional distress in such cases, stated,

[slince the chief element in determining whether

defendant owes a duty or an obligation to plaintiff is

the foreseeability of the risk, that factor will be of

prime concern in every case. Because it is inherently

intertwined with foreseeability such duty or obligation

must necessarily be adjudicated only upon a case-by-case

basis. We cannot now predetermine defendant's obligation

in every situation by a fixed category; no immutable rule

can establish the extent of that obligation for every

circumstance of the future. We can, however, define

guidelines which will aid in the resolution of such an

issue...

Versland, 671 P.2d at 585, citing Dillon, 441 P.2d at 920. Using

the Dillon test for foreseeability of bystanders as a basis, the

Versland Court formulated its own similar test for negligent

infliction of emotional distress which provided as follows:

1. The shock must result from a direct emotional

impact upon the plaintiff from the sensory and

contemporaneous perception of the accident, as contrasted

with learning of the accident from others after its

occurrence.

2. The plaintiff and victim must be closely related,

as contrasted with an absence of any relationship or the

presence of only a distant relationship.

3. Either death or serious physical injury of the

victim must have occurred as a result of the defendant's

negligence.

25
Versland, 671 P.2d at 588.

Negligent Infliction of Emotional Distress

as an Independent Cause of Action

In Shiplet v. First Sec. Bank of Livingston (1988), 234 Mont.

166, 762 P.2d 242, the plaintiffs had borrowed large sums of money

from defendant bank and, because of the bank's conduct regarding

these loans, attempted to recover for negligent infliction of

emotional distress in an independent tort action and as direct

victims. We affirmed the district court's grant of summary

judgment stating that 'I [nlegligent infliction of emotional distress

is a narrowly-defined tort in Montana," citing Versland and its

bystander rule. Shiplet, 762 P.2d at 247. We stated that the body

of the count and subsequent argument by the plaintiffs used

language from Johnson, which was a parasitic damages case, not a

case which addressed negligent infliction of emotional distress as

a separate cause of action. We held that because we were affirming

the district court's grant of summary judgment on all counts, we

would not reach any damages issues.

In Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 771 P.2d

114, Niles pled negligent infliction of emotional distress as a

cause of action. We approved of this claim, citing Johnson, and

stating that "[wlhere there is evidence of substantial invasion of

a legally protected interest which causes a significant impact upon

the person of the plaintiff, emotional distress is compensable

without showing of physical or mental injury." Niles, 771 P.2d at

119. We reviewed evidence from the plaintiff, her husband and a

26
clinical psychologist, who all testified that Niles had suffered

emotional distress from being falsely accused of a crime. We held

that the District Court did not err in denying the defendant's

motions on the cause of action for negligent infliction of

emotional distress.

Chronologically, the last case we review is Lence v. Hagadone

Inv. Co. (1993), 258 Mont. 433, 853 P.Zd 1230. Lence brought an

action for damages arising from "libel, false light invasion of

privacy, intentional and negligent infliction of emotional

distress, and negligence" and the District Court entered summary

judgment in favor of the defendant Inter Lake Publishing Company.

We reiterated in Lence that in order to recover damages for

infliction of emotional distress, " [tlhe victim must show that the

defendant's tortious conduct resulted either in physical or mental

injury or in ‘a substantial invasion of a legally protected

interest,' and that it 'caused a significant impact,' including

emotional distress 'so severe that no reasonable person could be

expected to endure it.'" ,Lence 853 P.2d at 1237. We further

stated that:

Even if Lence could legitimately plead emotional

distress, the Dailv Inter Lake articles would have had to

be more than merely hurtful or offensive; they would have

had to be "so outrageous as to go beyond all possible

bounds of decency." The newspaper's truthful publication

that Semenza had lodged a complaint with the Commission,

and its report of the building code dispute, hardly

constitute outrageous conduct that goes beyond all

possible bounds of decency.

In the past we have characterized emotional distress

as an element of damages rather than a distinct cause of

action. Even if considered only for the purpose of

establishing damages, however, Lence's deposition

testimony demonstrates the absence of any genuine issue

27
of material fact concerning the severity of his alleged

emotional distress.

Lence, 853 P.2d at 1238. (Citations omitted.)

As is readily apparent, the case law demonstrates that

negligent infliction of emotional distress as an independent tort

action is a thorny issue with which this Court has struggled. The

cases also illustrate the difficulties involved in developing a

cohesive approach to determining whether a given factual situation

should give rise to recovery for emotional distress, and the

necessity to create artificial exceptions to avoid the harsh

general rule.

Clearly, the traditional approach to the tort of emotional

distress has proven, at best, cumbersome. However, other courts

have addressed problems with the general rule and exceptions carved

from the rule, and their decisions provide guidance for our further

examination and clarification of this issue. Molien v. Kaiser

Foundation Hospitals (Cal. 19801, 616 P.2d 813, 819, places the

quandary surrounding the tort of emotional distress in perspective

by stating that "[allthough we recognize a need to guard against

fraudulent claims, we are not persuaded that the presently existing

artificial lines of demarcation are the only appropriate means of

attaining this goal." Moreover, in Rodriques, cited above, the

Hawaii Supreme Court addressed one of the major policy conundrums

at issue in the emotional distress debate by concluding that any

concern over the ability of courts to recognize the genuineness of

claims could be dispensed with by requiring that only severe mental

distress be compensated. The Rodrisues court stated that:

28
[clourts which have administered claims of mental

distress incident to an independent cause of action are

just as competent to administer such claims when they are

raised as an independent ground for damages. In judging

the genuineness of a claim of mental distress, courts and

juries may look to "the quality and genuineness of proof

and rely to an extent on the contemporary sophistication

of the medical profession and the ability of the court

and jury to weed out dishonest claims."

Rodriques, 472 P.2d at 519-20. (Citation omitted.)

The Rodriques court also addressed concern about the issue of

unlimited liability of defendants by stating that concerns over the

significance of the mental distress can be considered by the jury

which can apply a "standard of serious mental distress based upon

the reaction of 'the reasonable man."' Rodrisues, 472 P.2d at 520.

The court concluded that serious mental distress could be found

"where a reasonable man, normally constituted, would be unable to

adequately cope with the mental stress engendered by the

circumstances of the case." Rodriques, 472 P.2d at 520.

Finally, having dispensed with the policy arguments which have

served as the major impediments to recovery for emotional distress

and having established the parameters for the recognition of

emotional distress as an independent tort action, the court stated:

[hlaving established these standards, we do not find

the considerations which favor limiting the defendant's

liability to the exclusion of the plaintiff's claim of

decisive weight. Furthermore, we are faced with a

multiplication of psychic stimuli as "society becomes

more complex and people are crowded together" and with

increasing widespread knowledge of the debilitating

effect mental distress may have on an individual's

capacity to carry on the functions of life. The force

which compels recognition of an element of damages, once

parasitic, as an independent basis of liability is social

change. It can no longer be said that the advantages

gained by the courts in administering claims of mental

distress by reference to narrow categories outweigh the

29
burden thereby imposed on the plaintiff. We recognize

that the interest in freedom from negligent infliction of

serious mental distress is entitled to independent legal

protection.

Rodriques, 472 P.2d at 520. (Citation omitted.)

The Rodriques court stated that it would rely upon genera

tort principles to determine whether a defendant was liable to the

plaintiff in particular cases. "Thus a further limitation on the

right of recovery, as in all negligence cases, is that the

defendant's obligation to refrain from particular conduct is owed

only to those who are foreseeably endangered by the conduct and

only with respect to those risks or hazards whose likelihood made

the conduct unreasonably dangerous." Rodriques, 472 P.2d at 521.

Based upon the logic and analysis in Rodriques, Molien, the

Restatement (Second) of Torts, § 46, comment j, which is discussed

later, and the state of our prior case law, we conclude that it is

appropriate to clarify the existing law on negligent infliction of

emotional distress and to delineate a better approach to such

claims. We recognize that negligent infliction of emotional

distress as an independent tort action under the narrow Versland

analysis is archaic and does not fully address all plaintiffs who

are deserving of relief. Therefore, we adopt the following

standard for determining whether a plaintiff has demonstrated a

cause of action for the negligent infliction of emotional distress.

A cause of action for negligent infliction of emotional distress

will arise under circumstances where serious or severe emotional

distress to the plaintiff was the reasonably foreseeable

consequence of the defendant's negligent act or omission.

30
Concern over a floodgate of claims for emotional distress,

particularly fraudulent claims, is alleviated by the necessity to

prove that the emotional distress suffered is severe or serious.

Rodriques, 472 P.2d at 519-20. Concern over seeming unlimited

liability for defendants is alleviated by the necessity of

demonstrating that plaintiff's serious or severe emotional distress

was the reasonably foreseeable consequence of defendant's negligent

act or omission. Rodriques, 472 P.Zd at 520-21.

Furthermore, the Restatement (Second) of Torts provides

assistance in delineating the respective roles of the court and the

jury in deciding emotional distress cases. "It is for the court to

determine whether on the evidence severe [serious] emotional

distress can be found; it is for the jury to determine whether, on

the evidence, it has in fact existed." Restatement (Second) of

Torts, 5 46, comment j at 78.

The requirement that the emotional distress suffered as a

result of the defendant's conduct be "serious" or "severe" ensures

that only genuine claims will be compensated. We conclude that a

jury is capable of determining whether the emotional distress

claimed to have been sustained is "serious" or "severe." As stated

in Molien, citing Rodriques:

"In cases other than where proof of mental distress is of

a medically significant nature, [citations] the general

standard of proof required to support a claim of mental

distress is some guarantee of genuineness in the

circumstances of the case. [Citation. I” (472 P.2d at p.

520.). This standard is not as difficult to apply as it

may seem in the abstract. As Justice Traynor explained

in this court's unanimous opinion in State Rubbish Etc.

Assn. v. Siliznoff, supra, 38 Cal 2d at page 338, 240

P.2d 2.82, the jurors are best situated to determine

31
whether and to what extent the defendant's conduct caused

emotional distress, by referring to their own experience.

In addition, there will doubtless be circumstances in

which the alleged emotional injury is susceptible of

objective ascertainment by expert medical testimony.

Molien, 616 P.Zd at 821. (Citation omitted.)

Moreover, in Versland, we noted that with "today's more

advanced state of medical science, technology and testing

techniques," evidence of physical injury was not necessary to

adequately determine whether a party had suffered emotional

distress. Versland, 671 P.2d at 588. There is simply no

justification for maintaining the traditional rule that emotional

distress is not recoverable when claimed as an independent cause of

action; the concerns underlying maintaining the traditional rule no

longer weigh heavily enough to merit its continuation.

Furthermore, because we have concluded that the plaintiff must

prove that the emotional distress suffered is "serious" or "severe"

in order to warrant recovery on the claim, we also conclude that it

is appropriate to define "serious" or "severe" emotional distress

by employing the Restatement (Second) of Torts definition of severe

or serious emotional distress. (We note that, although the

Restatement definition addressed the definition of serious

emotional distress in the context of the tort of intentional

infliction of emotional distress, we conclude that it is also

appropriate to use that same definition in connection with

negligent infliction of emotional distress.) The Restatement

(Second) of Torts, 5 46, comment j at 77-78 defines "serious"

emotional distress as:

32
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

tranquillity 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 [person] 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.

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 had

knowledge.

We conclude that the above test comports with well reasoned

authority from other jurisdictions as well as the gradual evolution

of Montana case law on the issue of negligent infliction of

emotional distress. We hold that an independent cause of action

for negligent infliction of emotional distress will arise under

circumstances where serious or severe emotional distress to the

plaintiff was the reasonably foreseeable consequence of the

defendant's negligent act or omission, and, as indicated above, we

will employ the definition of severe or serious emotional distress

from the Restatement (Second) of Torts, 5 46, comment j at 77-78.

With respect to the District Court's order granting summary

judgment for Dighans in the instant case, while it is unclear as to

the precise legal basis for the court's decision, it appears that

the court grounded its decision on Versland. Even absent our

adoption of the new test discussed above, granting summary judgment

33
on the issue of negligent infliction of emotional distress in this

case on the basis of Versland is error as a matter of law. The

decisions of this Court involving negligent infliction of emotional

distress handed down since Versland was decided, while not entirely

consistent, at the very least, nevertheless, demonstrate a

development of the law beyond the holding of that case as well as

this Court's willingness to recognize negligent infliction of

emotional distress in a broader context. Accordingly, we hold

that, the District Court erred in granting Dighans' motion for

summary judgment on the issue of negligent infliction of emotional

distress, and we remand for further proceedings consistent with the

new standard enunciated above.

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - COUNT III

Sacco also contends that this Court has been willing to

recognize a claim of intentional infliction of emotional distress

so long as the "tortious conduct complained of resulted in a

substantial invasion of a legally protected interest and caused a

significant impact upon the person of the plaintiff," citing Frigon

v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 760 P.Zd 57. HCIP

argues that Sacco fails to allege conduct so outrageous that it

would justify a claim for intentional infliction of emotional

distress nor did she allege damages "of any consequence." Dighans

asserts that " [gliven this Court's prior treatment of intentional

infliction of emotional distress, which is a tort as opposed to an

element of damages, the trial court's ruling was appropriate. The

Court has not made it clear whether it is or is not recognized as

34
a legitimate cause of action. . . .'I

Although we have not yet recognized a factual situation which

would give rise to an action for intentional infliction of

emotional distress under the traditional analysis of the tort, we

tacitly approved intentional infliction of emotional distress pled

as a separate cause of action in Foster v. Albertsons, Inc. (1992),

254 Mont. 117, 835 P.2d 720, wherein we stated:

In Doohan v. Bigfork School Dist. No. 38 (1991), 247

Mont. 125, 805 P.2d 1354, we stated that we have not

rejected the validity of the tort of intentional

infliction of emotional distress as a separate cause of

action. Rather, we simply have not addressed a factual

situation that would give rise to liability for the tort

under the "extreme and outrageous conduct" standard set

forth in § 46 of the Restatement (Second) of Torts.

Doohan, 247 Mont. at 138, 805 P.Zd at 1362. Comment "d"

to 5 46 explains that the nature of the conduct which

gives rise to liability for the tort is extreme and

outrageous conduct going "beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community." We further stated

in Doohan that whether a plaintiff has introduced

sufficient evidence to support a prima facie case for

intentional infliction of emotional distress which would

survive a motion for a directed verdict is a question of

law. Doohan, 247 Mont. at 142, 805 P.2d at 1365.

In light of Doohan, it is clear that the District

Court erred in concluding that the appellant's

intentional infliction of emotional distress claim was

subject to a directed verdict solely on the basis that it

was brought as a separate cause of action. The parties

had no opportunity to argue whether, under the legal

standard set forth in Doohan, the evidence established

the threshold level of conduct necessary to survive a

motion for a directed verdict. We conclude that it is

necessary to remand for such further proceedings on the

intentional infliction of emotional distress claim as may

be appropriate based on the evidence presented at a new

trial in this cause.

Foster, 835 P.2d at 728

Fairly read, Frison, Doohan and Foster stand for the

proposition that intentional infliction of emotional distress is

35
recognized and can be pled as a separate cause of action in the

courts of Montana. It is the trial court's duty to determine

"whether a plaintiff has introduced sufficient evidence to support

a prima facie case for intentional infliction of emotional

distress. . .'I Doohan, 805 P.Zd at 1365. (Citation omitted.)

It is then for the jury to determine whether, based upon the

evidence presented, the tort of emotional distress was in fact

committed. Restatement (Second) of Torts, 5 46, comment j at 78.

However, in light of our adoption of a new standard for

negligent infliction of emotional distress, we determine that the

traditional approach to the tort of intentional infliction of

emotional distress does not harmonize with our holding concerning

negligent infliction of emotional distress. While we recognize

intentional infliction of emotional distress as an independent

cause of action, we also conclude that a different standard is

necessary to determine whether a cause of action for intentional

infliction of emotional distress exists. It makes little sense to

allow defendant's negligence to give rise to a cause of action for

negligent infliction of emotional distress where plaintiff's

serious or severe emotional distress was the reasonably foreseeable

consequence of the defendant's negligent act or omission, but to

require, for intentional conduct, that the defendant's conduct be

"extreme and outrageous conduct going 'beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.'" Foster, 835 P.2d at 728.

In essence, to adopt our new test for negligent infliction of

36
emotional distress and still adhere to the traditional test for

intentional infliction of emotional distress which requires

"outrageous" conduct, would put this Court in the untenable

position of requiring a higher standard of proof by plaintiffs when

intentional infliction of emotional distress is pled than when a

plaintiff pleads negligent infliction of emotional distress.

Accordingly, we conclude that the better approach to

intentional infliction of emotional distress as an independent

cause of action, is to require that the same basic elements be

proven in an action for intentional infliction of emotional

distress as in a cause of action for negligent infliction of

emotional distress - that an independent cause of action for

intentional infliction of emotional distress will arise under

circumstances where serious or severe emotional distress to the

plaintiff was the reasonably foreseeable consequence of the

defendant's intentional act or omission. Again, the requirement

that the emotional distress suffered be serious or severe, as we

have already defined those terms, alleviates any concern over a

floodgate of claims, particularly fraudulent claims. Also, the

requirement that a claim of intentional infliction of emotional

distress will arise only under circumstances where plaintiff's

serious or severe emotional distress was the reasonably foreseeable

consequence of the defendant's intentional act or omission

alleviates the concern that defendants will be exposed to unlimited

liability.

We find support for our decision that the same elements apply

37
to the independent cause of action of emotional distress, whether

negligent or intentional, in Johnson, cited above. In Johnson, we

stated:

courts generally allow damages for embarrassment,

humiliation and other mental distress, absent injury,

where defendant's conduct is intentional or outrageous.

To deny recovery in this case would focus upon

defendant's culpability which is more properly considered

when addressing the subject of punitive damages.

.

"Damages for emotional distress are compensatory,

not punitive. Thus, the quality of the conduct is per se

irrelevant, because negligently caused damage may be as

disturbing as that caused by a defendant intentionally

. the relevance of the quality of the conduct is in its

effect on the victim."

Therefore, whether tortfeasor's conduct is "extreme

and outrageous" is not controlling and fails to provide

a useful measure by which to evaluate compensable

"emotional distress."

Johnson, 686 P.2d at 212-13. (Citation omitted.) We reiterate

that rule here: damages for emotional distress are compensatory

and, therefore, the f ecus should be on the reasonable

foreseeability that plaintiff's serious or severe emotional

distress was the consequence of the defendant's act or omission.

The defendant's culpability for intentionally inflicting

emotional distress is "more properly considered when addressing the

subject of punitive damages." Johnson, 686 P.2d at 213. See also;

Miller v. Watkins (1982), 200 Mont. 455, 468, 653 P.2d 126, 132.

("Punitive or exemplary damages are allowed where the defendant has

been guilty of oppression, fraud, or malice, actual or presumed,

for the sake of example and by way of punishing the defendant.

Exemplary damages shall be used when the defendant clearly shows

that he is deserving of such special treatment and punishment.")

38
(Citation omitted.) We conclude that an award of punitive damages

is the proper method of addressing the culpability and intentional

nature of the defendant's conduct in an intentional infliction of

emotional distress case.

Here, the District Court concluded that this Court has not yet

recognized intentional infliction of emotional distress as a

separate cause of action and dismissed Sacco’s claim. Therefore,

no analysis was undertaken to determine whether sufficient evidence

had been produced to support a prima facie case of intentional

infliction of emotional distress. The District Court erred, and we

remand this cause of action for a determination as to whether there

is sufficient evidence to present this issue to the jury under the

test hereinabove adopted. We hold that the District Court erred in

granting summary judgment to all defendants on the issue of

intentional infliction of emotional distress and we remand for

further proceedings.

Summary - Independent Cause of Action for Emotional Distress

Summarizing: An independent cause of action for infliction of

emotional distress will arise under circumstances where serious or

severe emotional distress to the plaintiff was the reasonably

foreseeable consequence of the defendant's negligent or intentional

act or omission. The difference between the negligent and

intentional versions of the cause of action lies, not in the

elements of the tort, but in the nature and culpability of the

defendant's conduct. That being the case, when a cause of action

for intentional infliction of emotional distress is pled, the

39
plaintiff may request relief in the form of punitive damages, per

§ 27-l-220, MCA, to address the culpability of the defendant's

conduct. Serious or severe emotional distress to the plaintiff

which was the reasonably foreseeable consequence of defendant's

negligent or intentional act or omission will be addressed in both

causes of action, as stated above, through a prayer for relief in

the form of compensatory damages. Serious or severe emotional

distress is defined according to the Restatement (Second) of Torts,

5 46, comment j at 77-78. Finally, it is for the court to

determine whether on the evidence severe or serious emotional

distress can be found; it is for the jury to determine whether, on

the evidence, it has in fact existed.

Our prior cases dealing with independent causes of action

involving negligent or intentional infliction of emotional

distress, to the extent inconsistent with this opinion, are

overruled.

IV. DEFAMATION - COUNT II

Sacco asserts that the District Court erred when it granted

HCIP and Sorlies' motion for summary judgment on Count II, which

alleges that the defendants "defamed her by falsely reporting to

Defendant Dighans that Ms. Sacco had committed a crime by stealing

negatives from HCIP." HCIP counters that the District Court ruled

that Sorlies' comments to Dighans and Schreiber were "absolutely

privileged." They further argue that comments by Sorlies to

Sacco's employer should not be considered by this Court because the

cause of action for these comments was dismissed when the District

40
Court granted Sacco's motion for summary judgment.

We agree that the subissue of Sorlies' comments to Sacco's

employer is not before the Court at this time. Sacco filed a

motion for summary judgment on the limited subissue of alleged

defamatory comments by Glenn Sorlie to Sacco's employer in order to

dispose of all issues and appeal her case. The Sorlies' comments

to Dighans and Schreiber, the city attorney, are, however, at issue

in the instant case. We will discuss these two categories of

comments separately.

Section 27-l-804, MCA, governs whether a communication is

privileged. The statute provides:

What communications are privileged. A privileged

publication is one made:

(1) in the proper discharge of an official duty;

(2) in any legislative or judicial proceeding or in

any other official proceeding authorized by law;

(3) in a communication without malice to a person

interested therein by one who is also interested or by

one who stands in such relation to the person interested

as to afford a reasonable ground for supposing the motive

for the communication innocent or who is requested by the

person interested to give the information;

(4) by a fair and true report without malice of a

judicial, legislative, or other public official

proceeding or of anything said in the course thereof.

Sacco contends that the Sorlies falsely informed Dighans that

she had committed a crime by stealing photographs and proof sheets.

These statements are alleged to have been communicated to Dighans

prior to Sacco's arrest, and in fact, formed the basis for her

arrest. Sacco states that because no legislative or judicial

proceedings were under way when the alleged statements were made,

the privilege afforded by 5 27-l-804, MCA, was not available to the

Sorlies. We agree.

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Section 27-l-804(2), MCA, states that a privileged publication

is one made "in any legislative or judicial proceeding or in any

other official proceeding authorized by law. .'I Clearly, a

report by a citizen to the police is neither a legislative nor a

judicial proceeding. The question then becomes whether the report

is an official proceeding authorized by law. In this jurisdiction

we answer that question in the negative and find support for our

conclusion in the Restatement (Second) of Torts.

Section 611 of the Restatement (Second) of Torts involves

Reporting of Official Proceedings or Public Meetings. Comment h of

that section provides as follows:

An arrest by an officer is an official action, and

a report of the fact of the arrest or of the charge of

crime made by the officer in making or returning the

arrest is therefore within the conditional privilege

covered by this Section. On the other hand statements

made by the police or by the complainant or other

witnesses or by the prosecuting attorney as to the facts

of the case or the evidence expected to be given are not

yet part of the judicial proceeding or of the arrest

itself and are not privileged under this Section.

Section 611, comment h at 301. Although we are not concerned here

with a report of an official proceeding or public meeting, this

section does provide parameters for deciding whether a report to

the police is an official proceeding. We agree that a report to

the police by a citizen is not an official proceeding. Moreover,

even though Shors v. Branch (1986), 221 Mont. 390, 720 P.2d 239,

involved interpreting § 27-l-804(1), MCA, not subsection (2) which

is at issue here, we find its conclusion that unsolicited

complaints to the police are not privileged under § 27-l-804, MCA,

to be further support for our conclusion. See also; Niles v. Big

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Sky Eyewear (1989), 236 Mont. 455, 771 P.2d 114.

Therefore, we conclude that the Sorlies' statements to Dighans

are not privileged and Sacco's cause of action against the Sorlies

and HCIP for defamation concerning statements made to Dighans prior

to arrest may stand. We hold that the District Court erred in

granting summary judgment on this subissue of Sacco's claim for

defamation.

Sacco also contends that the Sorlies' statements to City

Attorney Schreiber were defamatory. These statements were made

after Sacco had been arrested on December 31, 1990, and had pled

not guilty on January 7, 1991. The complaint states that the

Sorlies, on January 30, 1991, "supplied additional false and

misleading information to Belgrade City Attorney William

Schreiber." Such statements fall under § 588 of the Restatement

(Second) of Torts which addresses statements by witnesses in

judicial proceedings and provides:

A witness is absolutely privileged to publish

defamatory matter concerning another in communications

preliminary to a proposed judicial proceeding or as a

part of a judicial proceeding in which he is testifying,

if it has some relation to the proceeding.

Section 588 at 250. Sorlies' statements to the City Attorney are

"communications preliminary to a proposed judicial proceeding"

under Restatement (Second) of Torts, 5 588 at 250. However,

comment e of § 588 states that "[a]~ to communications preliminary

to a proposed judicial proceeding, the rule stated in this Section

applies only when the communication has some relation to a

proceeding that is actually contemplated in sood faith and under

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serious consideration by the witness or a possible party to the

proceeding.t' Section 588, comment e at 251. (Emphasis added.)

Sacco has alleged that the statements made by the Sorlies were

false and defamatory. She alleges that the allegations brought by

the Sorlies which formed the basis for the criminal action against

her for the theft of the photos and proof sheets were not made in

good faith. Therefore, there is a question of fact as to whether

the proceeding was contemplated in good faith by the Sorlies. This

issue of fact should be determined by the jury. If the jury does

determine that the allegations brought by the Sorlies which

resulted in the criminal charges against Sacco were contemplated in

good faith and under serious consideration, the communications

between the Sorlies and City Attorney Schreiber are absolutely

privileged. If the jury determines that the allegations brought by

the Sorlies which resulted in the criminal charges against Sacco

were not contemplated in good faith and under serious

consideration, the communications are not privileged and the jury

must then determine whether the alleged statements were defamatory.

We hold that the District Court erred in granting summary judgment

on this subissue of the claim of defamation.

V. MALICIOUS PROSECUTION - COUNT I

Finally, Sacco contends that the District Court erred in

granting summary judgment on the issue of malicious prosecution as

to all defendants. She argues that the District Court erroneously

concluded that she did not prove the fifth element for a cause of

action for malicious prosecution. The defendants argue that a

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,,

motion to dismiss on a statute of limitations grounds is not a

termination in Sacco's favor; "tilt has no reflection on her

innocence or guilt." Thus, defendants assert that Sacco cannot

prove the fifth element of malicious prosecution and, therefore,

Sacco's claim cannot stand

In order to successfully bring an action for malicious

prosecution, the following six elements must be proven:

(1) a judicial proceeding commenced and prosecuted

against the plaintiff;

(2) the defendant's responsibility for litigating,

prosecuting, or continuing the proceeding;

(3) lack of probable cause for the defendant's acts;

(4) that the defendant was actuated by malice;

(51 that the proceeding terminated in favor of the

plaintiff; and

(6) that the plaintiff suffered damages.

Davis v. Sheriff (1988), 234 Mont. 126, 130, 762 P.2d 221, 224.

In the instant case, three of the above elements were

discussed or referenced by the District Court in its grant of

summary judgment. The other three elements of a cause of action

for malicious prosecution were not addressed. The District Court

concluded that probable cause did exist for Dighans' application

for the arrest warrant and for Sacco's subsequent arrest. On that

basis the District Court, referencing Dighans' memorandum

supporting his supplemental motion for summary judgment, concluded

that Sacco could not satisfy the third element required for a cause

of action for malicious prosecution.

The District Court also determined that there was a question

of fact as to element 2 but that the court's conclusion with

respect to element 5 was dispositive of the summary judgment

4 5
question. The District Court determined that the dismissal of the

theft charges against Sacco because of the statute of limitations

bar was not a termination in favor of the plaintiff and therefore,

since all six elements could not be satisfied, Sacco's claim on

this issue must fail. We disagree. We conclude that element 5

should be resolved in favor of Sacco.

Element 5 must be proven by the plaintiff in an action for

malicious prosecution and concerns whether the proceeding was

terminated in her favor. In the instant case, the original

complaint against Sacco stated that she committed the "offense of

theft of photo negatives/proof sheets between Oct. 19, 1989 and 28

June 1990." The Notice to Appear and Complaint was dated November

5, 1990. On January 25, 1991, the charge was amended to delete the

statement "commit the offense of theft of photo/proof sheets

between October 19, 1989 and 28 June 1990 from High Country

Independent Press," and the following statement was added - "Commit

the offense of theft of photograph negatives from the High Country

Independent Press." After the charge was amended, any dates for

the commission of the offense were deleted.

Without explaining his rationale, the Belgrade City Court

Judge simply concluded that the alleged theft would have had to

occur prior to or on October 19, 1989, and therefore, because the

prosecution had not been commenced within one year, the charge was

barred by the statute of limitations. Accordingly, Sacco's motion

to dismiss the charge of theft was granted on June 24, 1991.

Sacco cites Miller v. Watkins (19821, 200 Mont. 455, 653 P.2d

46
126, in her argument that the termination of the proceedings

against her were in her favor. In Miller, Watkins brought a

counterclaim against Miller for malicious prosecution. Miller had

approached brand inspectors contending that Watkins had stolen

horses from him and the brand inspectors approached the county

attorneys in Musselshell and Fergus counties with this information,

resulting in charges of horse theft being filed against Watkins.

The charges were ultimately dismissed with prejudice for lack of a

speedy trial.

In deciding Miller, we cited Lackner v. LaCroix (1980), 25

Cal.3d 147, 159 Cal.Rptr. 693, 635, 602 P.2d 333, 395, for the

proposition that:

"It is not essential to maintenance of an action for

malicious prosecution that the prior proceeding was

favorably terminated following trial on the merits.

However, termination must reflect on the merits of the

underlying action...A dismissal for failure to prosecute

. . does reflect on the merits of the action. . The

reflection arises from that natural assumption that one

does not simply abandon a meritorious action once

instituted." (Underscoring added.)

Miller, 653 P.2d at 130. We agreed with the California Court that

a dismissal for lack of speedy trial reflected on the merits and

could be considered a termination in favor of Watkins. An

analogous situation exists in the instant case.

Although we disagree with the Lackner court's ultimate

conclusion that dismissal because of the bar of the statute of

limitations does not reflect on the merits, we agree with the

rationale of that case wherein the court stated:

"In some instances the manner of termination reflects the

opinion of the court that the action lacks merit, as

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where the criminal proceedings are dismissed for lack of

sufficient evidence of guilt following a preliminary

hearing. [Citation omitted.] In others, the termination

reflects the opinion of the prosecuting party that, if

pursued, the action would result in a decision in favor

of the defendant, as where the district attorney seeks

dismissal of the prosecution of a criminal action for

lack of evidence [citations omitted] or where the

plaintiff in a civil proceeding voluntarily dismisses the

action [citations omitted]"

Lackner, 602 P.2d at 394-95. (Citations omitted.)

We agree that certain terminations of proceedings reflect on

the merits of the underlying action, and we conclude that, in the

instant case, the dismissal of the theft charge against Sacco does

reflect on the merits. The original complaint contained dates for

the alleged commission of the offense of theft but the amended

complaint deleted the dates because, according to the City

Attorney, "[wle couldn't prove that they were actually taken during

October 19, 1989, and June 28, 1990. " The amendment to the

complaint to delete the actual dates for the commission of the

offense brought the action within the bar of the statute of

limitations and ultimately resulted in the dismissal of the charge.

(The deletion of the dates on the complaint meant that the only

conceivable time period in which any person could have taken the

photographs and proof sheets was on October 19, 1989, or before

that date. Therefore, because the complaint was not filed until

November 5, 1990, the one year time period for the statute of

limitations for this offense had expired.)

Just as in Miller, we operate under the "natural assumption

that one does not simply abandon a meritorious action once

instituted." Miller, 653 P.2d at 130. Moreover, there is no logic

48
in the contention that a dismissal for lack of speedy trial

reflects on the merits of a case but that a dismissal because of

the bar of the statute of limitations does not. In either case,

"one does not simply abandon a meritorious action once instituted."

Miller, 653 P.2d at 130. If the original allegations were provable

in the first place, the case would have been actively prosecuted

within the time limitations set by the statute of limitations. The

fact that the original charges could not be proven and had to be

amended, with the result that the offense alleged in the amended

complaint then fell outside the statute of limitations and was

dismissed reflects on the merits of the original complaint.

Accordingly, we conclude that the termination was in Sacco's

favor and we hold that the District Court erred when it determined

that Sacco could not prove the fifth element, which conclusion

formed the basis for the court's granting summary judgment on the

issue of malicious prosecution.

We note that defendants HCIP and Sorlies concede that there is

a genuine issue of material fact concerning the second element to

be proven in a case of malicious prosecution--the defendant's

responsibility for litigating, prosecuting, or continuing the

proceeding. Therefore, this element must be addressed on remand as

must all other elements.

Moreover, because of our decision on Issue I, the third

element, lack of probable cause for the defendant's acts, must also

be addressed on remand. Again, we hold that the District Court

erred when it granted summary judgment to all defendants on the

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issue of malicious prosecution.

REVERSED AND REMANDED for further proceedings consistent with

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