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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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