TO: Deborah S. Gordon
DATE: September 19, 2008
RE: Elizabeth Smallwood; whether Smallwood states a claim sufficiently outrageous to support the intentional infliction of emotional distress
Under Florida law, does Smallwood state a cause of action sufficiently satisfying the outrageousness element of the intentional infliction of emotional distress if her neighbor Melnyk was merely acting within his legally permissible rights?
Probably not. Smallwood’s complaint probably falls within the scope of mere indignities or unpleasantness, which is insufficient to constitute outrageousness. In addition, aggregate factors ...view middle of the document...
Smallwood’s situation, which resulted from her neighbor Melnyk’s failure to turn off his security lights, is probably insufficient to satisfy the “outrageous” element of a claim for the intentional infliction of emotional distress. To be considered outrageous, “conduct [must be] so outrageous 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.” Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-279 (Fla. 1985). The standard is extremely stringent and extends beyond conduct that may be humiliating or reprehensible. Lay v. Roux Laboratories, Inc., 379 So. 2d 451 (Fla. Dist. Ct. App. 1980) (conduct not sufficiently outrageous where defendant was alleged to have used verbal attacks and racial slurs during parking space dispute).
In evaluating the conduct, a court will also look at aggregating factors, such as susceptibility to emotional distress. McAlpin v. Sokolay, 596 So. 2d 1266 (Fla. Dist. Ct. App. 1992). For example, in McAlpin, a physician verbally abused and refused medical treatment to a patient he knew owed a debt to his friend. Id. at 1268. The court found that the doctor’s knowledge of the plaintiff’s medical problems and his subsequent behavior exploited her vulnerability to emotional distress. Id. at 1269. The knowledge of such susceptibility may make the outrageousness of a claim more pervasive. See id.
Taking advantage of an unequal power relationship also helps heighten the efficacy of the claim. Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 596 (Fla. Dist. Ct. App. 2007). In Steadman, the defendant’s calculated delay of a lung transplant hinged on knowledge that the plaintiff was likely to die in a short time. Id. at 595. The court held that, independently, the delay was not outrageous conduct, but in conjunction with the defendant’s knowledge of the plaintiff’s life expectancy and previously litigated entitlement to a lung transplant, the claim became sufficiently outrageous. Id. at 596. A party asserting disproportionate power like the defendant had in Steadman may help elevate a claim to the level of outrageousness. Id. at 597.
Even if a claim is sufficiently outrageous, a party escapes liability if it exercises its legal rights in a permissible way. McCarson, 467 So. 2d at 279. In McCarson, the insurer (defendant) stopped making payments to the insured when they received no response after requesting proof of ineligibility for Medicare. The plaintiff theorized that this action caused the premature death of the insured. Id. at 278. The McCarson court held that there was no liability even if the conduct was sufficiently outrageous because the defendant was merely “[insisting] upon [its] legal rights in a permissible way. Id. at 279. However, the courts have also recognized that legal rights may be exercised in an impermissible way. Liberti v. Walt...