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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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