Chapter 35: Intentional Infliction of Emotional Distress (Outrageous Conduct)

§35.1 Generally

The Case: Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville , 154 S.W.3d 22 (Tenn. 2005).

The Basic Facts: Plaintiffs were victims and the mother of a victim of sexual abuse by a priest formerly employed by Defendant diocese. The plaintiffs filed suit against the diocese alleging that "by outrageous acts and omissions, the Diocese recklessly inflicted severe emotional harm upon the plaintiffs." 154 S.W.3d at 30.

The Bottom Line:

• "The tort of intentional infliction of emotional distress, also known as the tort of outrageous conduct, was recognized in Tennessee in Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274-75 (Tenn. 1966). Claims based on this tort seek recovery 'for mental or emotional disturbance alone, unconnected with any independently actionable tort or with any contemporaneous or consequential objectively ascertainable injury.' Id. at 272. Based on Medlin and its progeny, a plaintiff suing for outrageous conduct must satisfy three elements: first, 'the conduct complained of must be intentional or reckless'; second, 'the conduct must be so outrageous that it is not tolerated by civilized society'; and third, 'the conduct complained of must result in serious mental injury.' Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see Lourcey, 146 S.W.3d at 51; Miller v. Willbanks, 8 S.W.3d 607, 612 (Tenn. 1999). A causation requirement is implicit in the third element which necessitates that the misconduct 'result in serious mental injury.'" 154 S.W.3d at 31.
• "These elements correspond with section 46(1) of the [RESTATEMENT (SECOND) OF TORTS] (1965) ("[Second Restatement]"). See Miller, 8 S.W.3d at 612 (stating that this Court has 'ground[ed] the cause of action for intentional infliction of emotional distress within the [Restatement] framework'); Medlin, 398 S.W.2d at 274 (basing its holding on the [Second Restatement]). Tennessee thus stands in accord with the overwhelming majority of jurisdictions that have adopted fully or in part section 46 of the [Second Restatement] or that impose generally the same requirements even though they have not expressly adopted the [Second Restatement]. Consequently, in resolving the issue presented by this appeal, we begin, as did the Court of Appeals, with section 46." Id. at 31-32 (footnote omitted).
• "It is important initially to clarify that section 46 divides the cause of action for outrageous conduct into direct, first-party claims and indirect, bystander claims. Section 46 provides as follows:
  1. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
  2. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm."
  Id . at 32-33.
• "A direct action under subsection 46(1) allows a plaintiff to mount a prima facie claim by satisfying with respect to himself or herself the standard elements of: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional harm." Id. at 33.
• "However, a bystander claim under subsection 46(2) imposes somewhat different requirements. First, the tortfeasor's outrageous conduct must have been intentionally or recklessly 'directed at a third person' in a way that satisfies as to the third party the outrageous conduct requirement of subsection 46(1). Second, the bystander plaintiff must have suffered severe emotional distress. Third, the plaintiff either must bear a close family relation to the third party or such severe emotional distress must be suffered that it results in physical harm. In both instances, the bystander plaintiff must have perceived contemporaneously and from close spatial proximity the emotional harm inflicted upon the third party. [Dan B. Dobbs, The Law of Torts § 307, at 833-34 (2001)]." Id.
• "A problem common to most, if not all, of the decisions holding that reckless infliction of emotional distress must be based upon conduct that was directed at a specific individual or that occurred in the presence of the plaintiff is the failure to pay adequate attention to the unique nature of recklessness. An action predicated ab initio upon recklessness, such as reckless infliction of emotional distress, is unusual in tort law because the fundamental analysis involves aspects which resemble both negligence and intent. [Restatement (Third) of Torts § 2 cmt. b (Tentative Draft No. 1, 2001)] ('While there are general rules exposing persons to liability who cause harm intentionally or negligently, there is no similar general rule subjecting to liability the person who causes harm recklessly.'); [Dobbs § 27, at 51] ('Courts often recognize a kind of third category of fault that is distinguishable from both intent and from negligence. This category is called recklessness or willful and wanton misconduct. Not surprisingly, reckless conduct resembles both intentional conduct and negligence, so this category adds a degree of confusion or uncertainty.'); [W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)] (stating that the 'penumbra' of recklessness or 'quasi-intent' lies between the doctrines of intent to do harm and ordinary negligence)." Id. at 36.
• "When it comes to the state-of-mind element of outrageous conduct,^FN25 courts have often failed to distinguish adequately recklessness from intent, thereby rendering recklessness ineffective as an independent predicate for satisfying the state-of-mind element. ^FN26 By requiring the tortfeasor's reckless misconduct to take place in the immediate presence of a plaintiff of whom the defendant is aware, the majority position in Christensen, 820 P.2d at 201-04, indeed reduces recklessness virtually to the same scope as intentional conduct. See Christensen, 820 P.2d at 205 (Mosk, J., concurring and dissenting) ('[T]he majority's requirement that defendants consciously direct outrageous conduct at plaintiffs makes the 'recklessness' prong indistinguishable from the 'subjective intent' prong.').

  FN25 Although we refer to recklessness herein as a state-of-mind element, to be precise, recklessness as an element applies both to state of mind and to conduct.
  
  FN26 Gann confuses recklessness with intent in such a manner, incorrectly describing the standard as 'intent to do serious emotional injury to the plaintiffs, or [acting] with such recklessness as to impute such an intent.' 758 S.W.2d at 547."

  Id .
• "In Tennessee, reckless misconduct generally has not been perceived as conduct which must be directed toward specific, pre-identified victims. In Hodges v. S.C. Toof & Co., this Court explained that a person engages in reckless misconduct 'when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.' 833 S.W.2d 896, 901 (Tenn. 1992); see also Brown v. Hamilton County, 126 S.W.3d 43, 49-50 (Tenn. Ct. App. 2003) (applying the Hodges definition of recklessness to a civil claim outside the context of punitive damages). To 'disregard' means 'to give no thought to: [to] pay no attention to.' [Webster's Third New Int'l Dictionary 655 (1971)]. By contrast, to 'direct' action to or toward a person or object means 'to aim fixedly: [to] concern or involve oneself primarily or totally' with the target of one's action. Id. at 640. Recklessness as conscious disregard requires that the actor be aware of a substantial and unjustifiable risk of harm. However, as conscious disregard, recklessness cannot require that the actor aim the conduct toward a specific person or a specific result, for to do so would contradict the inattentive and thoughtless nature of disregard. In short, the directed-at requirement is incompatible with the concept of recklessness insofar as reckless misconduct has a general or random quality. [James B. Brady, Recklessness, Negligence, Indifference, and Awareness, 43 Mod. L. Rev. 381, 386 (1980)] ('If the actor aims at the consequences, then even if the expectation of the consequences is slight, he acts intentionally rather than recklessly. From a negative viewpoint, then[,] desire for the possible consequences is necessarily excluded from the concept of recklessness.'); cf. State v. Payne, 7 S.W.3d 25, 29 (Tenn. 1999) (The criminal offense of reckless endangerment 'can be committed against the public at large . . .' if members of the public are in close enough proximity that there exists a reasonable probability of death or serious injury.); Cook ex rel. Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994) ('Driving while intoxicated on a public highway is gross negligence, or recklessness, given the significant risk of serious bodily injury or death, not only to the intoxicated driver, but [also] to unsuspecting motorists and pedestrians.')." Id. at 37-38.
• "Recklessness is a hybrid concept which resembles both negligence and intent, yet which is distinct from both and can be reduced to neither. 'A person acts intentionally when it is the person's conscious objective or desire to engage in the conduct or cause the result.' Hodges, 833 S.W.2d at 901. Although the reckless actor intends to act or not to act, the reckless actor lacks the "conscious objective or desire" to engage in harmful conduct or to cause a harmful result. See State v. Kimbrough, 924 S.W.2d 888, 891 (Tenn. 1996) ('[R]ecklessness and negligence are incompatible with desire or intention.'); [Dobbs § 147, at 351] (The reckless actor 'does not intentionally harm another, but he intentionally or consciously runs a very serious risk with no good reason to do so.'). Nevertheless, recklessness contains an awareness component similar to intentional conduct which is not demanded of negligence. See [Dobbs § 147, at 351] (Recklessness 'entails a mental element that is not necessarily required to establish gross negligence.'); Brady, at 384 ('The element of awareness of risk . . . does distinguish between recklessness and negligence.'). Further, although recklessness is typically a criterion for determining whether punitive damages are warranted in negligence cases, cf. Hodges, 833 S.W.2d at 901, claims for reckless infliction of emotional distress lack an underlying negligence claim. Therefore, a recklessness analysis is something unique which differs from analyses based strictly on either intent or negligence. Courts requiring the directed-at element generally have failed to recognize and to address the unique qualities of recklessness." Id. at 38.
• "In addressing the unique nature of recklessness and the directed-at issue, we are confronted with three options. First, we could simply eliminate recklessness as a means for satisfying the state-of-mind element of outrageous conduct. See Alsteen v. Gehl, 124 N.W.2d 312, 317 (Wisc. 1963) (refusing to recognize recklessness as a predicate state of mind for the tort of outrageous conduct). Second, we could require that claims for reckless infliction of emotional distress must be based upon conduct that had been directed at a specific individual or that occurred in the presence of the plaintiff, thereby effectively collapsing recklessness into intent. See supra; see also Brady , at 394 (In applying the 'aiming at' or directed-at requirement, '[t]he result is that every case of recklessness can be converted to 'intentionally exposing to the risk' and so the distinction between recklessness and intention is collapsed.'). Third, we could reaffirm our recognition of infliction of emotional distress predicated upon recklessness and expressly reject the directed-at requirement. We choose the third option. Therefore, we hold that a claim of reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff.^FN29

  FN29 We express no opinion herein concerning whether claims of intentional infliction of emotional distress must be based on conduct that was directed at a specific individual."

  Id . at 38-39.
• "Our holding is consistent with Tennessee law and advances important policy considerations. First, the courts shoulder the responsibility of providing a remedy to those who have been wrongly injured. See Camper v. Minor, 915 S.W.2d 437, 441 (Tenn. 1996). To require a claim for reckless infliction of emotional distress to be based upon conduct that was directed at a specific individual would leave a gap in tort law where persons wrongly harmed would be deprived of a remedy. Cf. Christensen, 820 P.2d at 205 (Mosk, J., concurring and dissenting). Second, this Court has strongly affirmed the validity and significance of purely emotional harm as a basis for recovery, recognizing that emotional harm in the absence of physical impact can be as damaging if not more damaging than harm caused by physical impact. Medlin, 398 S.W.2d at 272-73. Third, we express confidence in the court system to winnow out false and frivolous claims through the pretrial and trial processes and through conscientious application of the elements necessary to establish causes of action for solely emotional harm." Id .
• "The elements of intentional and reckless infliction of emotional distress themselves perform an important gatekeeping function for the purposes of ensuring the reliability of claims and of preventing liability from extending unreasonably. Cf. Miller, 8 S.W.3d at 612. The outrageous conduct requirement is a high standard which has consistently been regarded as a significant limitation on recovery. To qualify as outrageous, conduct must be ''so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly [i]ntolerable in a civilized community.'' Medlin, 398 S.W.2d at 274 (quoting [Second Restatement § 46 cmt. d]). In Miller, this Court pointed out that the outrageousness requirement is an "exacting standard" which provides the primary 'safeguard' against fraudulent and trivial claims. 8 S.W.3d at 614 ('The risk of frivolous litigation . . . is alleviated in claims for intentional infliction of emotional distress by the requirement that a plaintiff prove that the offending conduct was so outrageous that it is not tolerated by a civilized society.'). The mental harm which the plaintiff suffered also must be demonstrated to have been particularly serious." Id.
• "Further, the state-of-mind element of intent or recklessness places significant limitation on recovery. Being required to prove the tortfeasor's intent or recklessness imposes a significantly higher burden than is required for mere negligence actions. See Christensen, 820 P.2d at 205 (Mosk, J., concurring and dissenting) (The tort of outrageous conduct 'may be distinguished from negligent infliction of emotional distress . . . because recklessness requires a higher degree of fault than simple negligence.'); [Dobbs § 27, at 52]. The recklessness element requires the defendant to be aware of, but consciously to disregard, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care which, under all the circumstances, an ordinary person would have exercised. Hodges, 833 S.W.2d at 901. The reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor. See Tommy's Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986) (holding that 'in cases where the plaintiff alleges that the defendant acted recklessly, it must be shown that the defendant acted in deliberate disregard of a high degree of probability that the emotional distress will follow') (emphasis added); Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) (holding that liability for reckless infliction of emotional distress 'extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it') (emphasis added); cf. McClenahan v. Cooley, 806 S.W.2d 767, 775-76 (Tenn. 1991) (discussing foreseeability and proximate causation in the context of negligence actions)." Id. at 39-40.
• "We acknowledge that our holding herein eliminates the distinction between direct claims and bystander claims when the infliction of emotional distress claim is predicated upon recklessness. Under section 46 of the [Second Restatement], the criterion by which direct and bystander claims are differentiated is the determination whether the misconduct was directed at the plaintiff or at a third party. However, by holding that reckless infliction of emotional distress need not be directed at a specific individual, the criterion for differentiating between direct and bystander claims in that context is thus removed.^FN30 Although this Court has never expressly recognized subsection 46(2) bystander claims, we note that subsection 46(2) involves the kind of arbitrary requirements which we analyzed and rejected within the context of negligent infliction of emotional distress in Camper, 915 S.W.2d at 440-46.^FN31

  FN30 A further corollary is that the additional requirements of subsection 46(2) (contemporaneous presence and close relationship) will never be triggered for claimants under reckless infliction of emotional distress; in other words, all plaintiffs will necessarily be treated as direct claimants. See Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d 633, 639-40 (Tex. Ct. App. 1997) (holding that a truck which careened into a parade after the driver fell asleep posed 'a direct threat to all the marchers who conceivably could have encountered the tractor trailer plowing through their midst'), overruled by Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998).
  
  FN31 Although Tennessee is one of an exceedingly small minority of jurisdictions which currently follow a general foreseeability approach for negligent infliction of emotional distress, [Dobbs § 312, at 850-51]; see Sacco v. High Country Indep. Press, Inc., 896 P.2d 411, 418 (Mont. 1995); Camper, 915 S.W.2d at 446, we think it unnecessary and unwise for Tennessee courts to abandon established precedent by following Sacco in merging intentional, reckless and negligent infliction into a single tort, wherein the higher levels of culpability serve merely to subject the defendant to punitive damages, Sacco, 896 P.2d at 428-29. Causes of action in Tennessee for intentional, reckless and negligent infliction of emotional distress retain respectively distinct and logically appropriate requirements and burdens."

  Id . at 40.

Other Sources of Note: Pollard v. DuPont De Nemours, Inc. , 412 F.3d 657, 665 (6th Cir. 2005) (citing Doe 1 and holding that a corporation may be held liability for its "failure to act in the face of outrageous conduct by persons under its immediate control who are causing serious harm within the general scope of employment and within the knowledge of its officials."); Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004) (defendant's conduct (murder of his wife and suicide, both in presence of plaintiff) could form basis of outrageous conduct action); Miller v. Willbanks, 8 S.W.3d 607 (Tenn. 1999) (expert testimony permitted, but not required, to establish severe emotional distress); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (placing patients in same room with patients infected with human immunodeficiency virus is not outrageous conduct); Medlin v. Allied Inv. Co., 398 S.W.2d 270 (Tenn. 1996) (first Tennessee appellate discussion to recognize the tort).

Recent Cases:

Harris v. Horton , No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) (affirming summary judgment on reckless infliction of emotional distress claim); Bellomy v. Autozone, Inc., No. E2009-00351-COA-R3-CV, 2009 WL 4059158 (Tenn. Ct. App. Nov. 24, 2009) (affirming judgment of trial court finding defendant's actions did not meet standard for outrageous conduct); Runions v. Tennessee State University, No. M2008-01574-COA-R3-CV, 2009 WL 1939816 (Tenn. Ct. App. Feb. 17, 2009) (affirming judgment of trial court finding defendants' actions did not meet standard for outrageous conduct); Cawood v. Booth, No. E2007-02537-COA-R3-CV, 2008 WL 4998408 (Tenn. Ct. App. Nov. 25, 2008) (vacating grant of summary judgment on outrageous conduct claim finding fact issue as to whether allowing third parties not connected with police investigation to view videotape evidence is outrageous); O'Dell v. O'Dell, No. E2007-02619-COA-R3-CV, No. 2008 WL 3875434 (Tenn. Ct. App. Aug. 21, 2008) (upholding dismissal of claim for outrageous conduct finding acts complained of do not rise to required level of outrageousness); Rentea v. Rose, No. M2006-02076-COA-R3-CV, 2008 WL 1850911 (Tenn. Ct. App. Apr. 25, 2008) (finding no abuse of discretion by the trial court and affirming grant of summary judgment because plaintiff did not product sufficient evidence to establish claims of abuse of process, fraudulent concealment, or outrageous conduct); Akers v. Buckner-Rush Funeral Enterprises, Inc., No. E2006-01513-COA-R3-CV, 2007 WL 4146206 (Tenn. Ct. App. Nov. 21, 2007) perm. appeal denied (Apr. 7, 2008) (holding that order of priority for bringing claims for unauthorized mutilation of dead body is (1) spouse of decedent; (2) adult children of decedent; (3) parents of decedent; (4) adult siblings of decedent; (5) adult grandchildren of decedent; and (6) grandparents of decedent, and dismissing all claims including emotional distress claims for lack of standing); Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149 (Tenn. Ct. App. 2007) perm. appeal denied (April 7, 2008) (holding that any tort claims for negligent, reckless, or intentional interference with a dead body can only be brought by person with a right to control disposition of the body and dismissing claim for lack of standing); Nairon v. Holland, No. M2006-00321-COA-R3-CV, 2007 WL 626953 (Tenn. Ct. App. March 1, 2007) (holding that plaintiff stated claim for intentional infliction of emotional distress and that expert proof is not necessary to establish serious mental injury element of claim).

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