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DTCI: Intentional infliction of emotional distress

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The tort of intentional infliction of emotional distress ("IIED") arises when a defendant (1) engages in "extreme and outrageous" conduct that (2) intentionally or recklessly (3) causes (4) sever emotional distress to another. Creel v. I.C.E. Assoc. Inc., 771 N.E.2d 1276, 1282 (Ind. Ct. App. 2002). In the past, a claim for IIED could not stand alone and the plaintiff had to prove a host tort. Williams v. Tharp, 889 N.E.2d 870, 879 n.6 (Ind. Ct. App. 2008). However, Indiana now recognizes a separate cause of action for IIED without the need for an accompanying tort. Id.

In regards to the alleged emotional distress in IIED claims, a plaintiff must satisfy the "impact rule" or its progeny. The requirements to prove this tort are "rigorous." Id.; Ledbetter v. Ross, 725 N.E.2d 120, 124 (Ind. Ct. App. 2000). Using Cullison as a guide, Indiana courts have been very reluctant to recognize the tort of intentional infliction of emotional distress, and in fact, the Indiana Supreme Court has never been faced with a set of facts that states a claim for intentional infliction of emotional distress. Hamilton v. State Farm Mut. Inc. Co., 2002 U.S. Dist. LEXIS 7148 (S.D. Ind. Mar. 13, 2002). There is no recovery where there has been only economic damage or loss. Ketchmark v. Northern Ind. Pub. Serv. Co., 818 N.E.2d 522, 524 (Ind. Ct. App. 2004).

Intentionally and Recklessly


The intent to harm emotionally constitutes the basis for IIED. Creel, 771 N.E.2d at 1282; Ledbetter, 725 N.E.2d at 124. In an appropriate case, the question can be decided as a matter of law. See Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind. Ct. App. 2001). "It may be noted that a demonstrated intent to harm seems inconsistent with mere reckless conduct." Lachenman v. Stice, 838 N.E.2d 451, 457 n.5 (Ind. Ct. App. 2005).

However, although intent is a required element, it is not enough that the defendant acted with an intent that is tortious or even criminal, or that he intended to inflict emotional distress, or even that his conduct was characterized by "malice," or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Creel, 771 N.E.2d at 1282. Rather, the defendant's conduct must also have been extreme and outrageous. Id.

"Extreme and Outrageous" Conduct

Liability for IIED has been found only where the conduct has been so outra geous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Id. In general, the case is one in which the recitation of the facts to an average member of the community would arise his resentment against the actor and lead him to exclaim, "Outrageous!" Id. "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime, plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam." Gable v. Curtis, 673 N.E.2d 805, 810 (Ind. Ct. App. 1996). What constitutes extreme and outrageous conduct depends, in part, upon prevailing cultural norms and values and in the appropriate case, the question can be decided as a matter of law. Creel, 771 N.E.2d at 1282.

No Outrageous Conduct, as a Matter of Law

No outrageous conduct was found where a security manager of a department store "accused" a lessor's employee of substance abuse, shoplifting, and dishonesty in "a gruff and intimidating manner" while she was detained in an interview room. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 970 (Ind. Ct. App. 2001). The court found that the security manager's actions occurred in the context of a detainment for the purpose of determining the extent of plaintiff's unauthorized conduct. Id. Such actions, taken in context, did not constitute outrageous behavior nor did they exceed all bounds usually tolerated by a decent society. Id.

No outrageous conduct found where a woman's dog was injured and consequently died after being attacked by neighbors' dogs. Lachenman, 838 N.E.2d at 457. The court found that even though the neighbors may have been negligent in failing to keep their dogs on leashes and otherwise failing to properly supervise their dogs, such actions did not constitute outrageous behavior as contemplated by the narrow definition adopted from the Restatement. Id. Further, the court found that there was nothing in the records to support a reasonable inference that the neighbors intended to cause the plaintiff emotional distress by their behavior. Id.

Issue of Fact Whether Conduct Was Outrageous


A genuine issue of material fact existed as to whether an employee's supervisor engaged in extreme and outrageous conduct by allegedly shouting at the employee, criticizing her work in front of other employees, inquiring about the employee's menopause and whether her husband was sexually impotent from diabetes, and misrepresenting the company's intentions regarding the security of the employee's position. Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999).

The court in Holbrook v. Lobdell-Emery Mfg. Co., 219 F.3d 598, 602 (7th Cir. Ind. 2000), did not render an opinion as to whether the acts committed by plaintiff's coworkers and supervisors meet the standard for extreme and outrageous conduct because plaintiff did not sue the proper plaintiffs. However, in dicta, the court stated, "It is not difficult to imagine that a jury would exclaim 'Outrageous!' upon hearing that plaintiff's co-workers taunted him and set him on fire knowing that he had recently been released from a hospital where he was being treated for severe depression and psychosis. We join the district court's assessment that verbally and physically assaulting a mentally disabled man is cruel and inexcusable. Because he sued his employer rather than his co-workers, however, the district court was correct to grant summary judgment in favor of Lobdell-Emery under Indiana law." Id.

Severe Emotional Distress to Another


In order to establish a claim for IIED, a plaintiff must satisfy either the "modified impact rule," ("MIR") or the "bystander rule," or "another rule" which has not yet been clearly formulated in case law to date. Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind. 2000). Where the physical impact is slight or the evidence of the physical impact is tenuous, the court will evaluate the alleged emotional distress to determine whether it is not likely speculative, exaggerated, fictitious, or unforeseeable. Atlantic Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind. 2006).

Originally, Indiana allowed recovery for the infliction of emotional distress only in circumstances involving impact to the plaintiff's person under what was called the "direct impact" rule. Ketchmark, 818 N.E.2d at 523. The direct impact rule survives today, although it has been modified extensively, and has three elements: (1) an impact on the plaintiff, (2) that causes physical injury to the plaintiff, and (3) in turn causes emotional distress. Id. Therefore, under the direct impact rule, recovery was precluded if a plaintiff did not sustain physical injury. Id. However, in 1991, the Indiana Supreme Court expanded the direct impact rule, creating what is known as the "modified impact" rule. Id. This modified impact rule holds that:

When ... a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, we hold that such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff. Id. (citing Shaumber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991)).

Further, Indiana also allows damages for infliction of emotional distress when a plaintiff witnesses an injury to the person of a close relative without any physical impact on the plaintiff-the "bystander direct involvement test." Id. This test was announced in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), which held:

Where the direct impact test is not met, a bystander may nevertheless establish "direct involvement" by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant's negligent or otherwise tortuous conduct.

Id. at 524. This is the bystander rule.

There is also an exception to the physical impact requirement for claims of intentional torts. Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991); Shaumber, 579 N.E.2d at 454; Atlantic Coast Airlines, 857 N.E.2d at 998. In Cullison, the Indiana Supreme Court found that there is no requirement of a physical impact when emotional distress is claimed due to a commission of an intentional tort (i.e., trespass or assault). Cullison, 570 N.E.2d at 30.

However, Indiana has further expanded IIED jurisprudence by allowing recovery or by refusing to dismiss claims for failure to state a claim under the direct involvement rationale in several cases:

Where human remains were lost. Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692 (Ind. Ct. App. 2002);

Where an individual was mistakenly diagnosed with Hepatitis C. Keim v. Potter, 783 N.E.2d 731 (Ind. Ct. App. 2003; and,

Where alleged medical malpractice led to miscarriage. Ryan v. Brown, 827 N.E.2d 112 (Ind. Ct. App. 2005).

Where alleged medical malpractice led to "a continued pregnancy and the physical transformation [plaintiff's] body underwent as a result." Bader v. Northeast Ind. Genetic Counseling, Inc., 732 N.E.2d 1212 (Ind. 2000).

The Blackwell case has been referred to as a "fact-specific expansion of the Groves bystander rule." Lachenman, 838 N.E.2d at 460. Therefore, it does not appear, in fact, to be an expansion of the MIR. Rather, it can be more properly understood as an anomaly in case law. As for the other cases which did not involve "the bystander rule as set forth in Groves, the only cases which a direct, physical impact was not a prerequisite for recovery for negligent infliction of emotional distress involve medical malpractice." Id. The Indiana Supreme Court attempted to clarify the confusion caused by these expansion cases in Atlantic Coast Airlines, 857 N.E.2d at 989. In this case, the court clarified its position. It explained that the underlying rationale for the rule that damages for mental or emotional distress were recoverable only when accompanied by and resulting from a physical injury was that "absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for awarding damages." Id. at 998. However, the MIR maintains the requirement of a direct physical impact, although the impact does not need to cause physical injury to the plaintiff. Id. In addition, the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact. Id.

Although there have been calls to abandon the impact rule altogether because, among other things, there are concerns that Indiana's impact rule, even as modified, may prohibit some litigants from recovering damages for bona fide emotional injury even though there has been no physical impact. The Indiana Supreme Court's view seems to be that the requirements under Indiana's MIR are modest and a less restrictive rule would raise the potential for a flood of trivial suits, pose the possibility of fraudulent claims that are difficult for judges and juries to detect, and result in unlimited and unpredictable liability. Id. The Court therefore reaffirmed that Indiana's impact rule continues to require a plaintiff to demonstrate a direct physical impact resulting from the negligence of another. Atlantic Coast Airlines, 857 N.E.2d at 998.

Ms. Johnson-Hurtado is an associate at Mallor Clendening Grodner & Bohrer LLP in Bloomington, Indiana, and is a member of the DTCI. She graduated cum laude from Indiana University Maurer School of Law, in Bloomington, and received her Bachelor of Science degree in legal studies, cum laude, from the University of Evansville. She is a 2002 Fellow, Indiana Conference for Legal Education Opportunity (ICLEO).

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  • help???
    I have a protective order my 4th on someone. We have moved, she has found out our new adress filing a bogus order on me which i hired a lawyer to get dismissed of course she did not appear! and i was out the money!because she was gonna be grilled. So what can i do? apparently this is not enough proof to show the investigating prosecutor that she is still stalking my children? So they will not get her for invasion of privacy where i live! I need help fast this has went on year and she is growing more and more unstable! She is allowed to call us, email us and still nothing can be done they say you cant prove she did it! anyone could have used her cell or computer wth? is a dang protection order good for? I'm so over this and her stalking my kids at school or riding around our house which she is also allowed to do it is also public property like the school! Please advise me how to handle this????
    thanks

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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