§ 5.3 Claims for Recovery

LibraryDamages (OSBar) (2016 Ed.)
§ 5.3 CLAIMS FOR RECOVERY

Damages for mental distress are allowed for the following types of claims:

(1) Intentional infliction of severe emotional distress, which is a separate claim in tort.

(2) Other intentional torts in which the courts have recognized emotional distress as a natural injury for which recovery is allowed.

(3) Negligent conduct when physical injury or impact is involved or when a sufficient "legally protected interest" has been violated.

As a separate issue, Oregon has generally declined to extend recovery for emotional distress to plaintiffs who are not the object of the defendant's tortious conduct, that is, only an observer of the incident or relative of the direct victim. See Delaney v. Clifton, 180 Or App 119, 125-27, 41 P3d 1099, rev den, 334 Or 631 (2002). But see Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966) (plaintiff was entitled to recover damages for emotional distress resulting from the defendant's negligent disinterment of her husband's remains).

§ 5.3-1 Intentional Infliction of Severe Emotional Distress

The intentional infliction of severe emotional distress (IIED), an often misunderstood tort, provides the basis for much of the litigation regarding damages for mental distress. This tort stands as a separate, independent cause of action. It does not merely provide necessary boilerplate language for the incorporation of a claim for mental-distress damages in the pleading of other torts.

IIED as a claim for relief was first established in Pakos v. Clark, 253 Or 113, 453 P2d 682 (1969). In Pakos, the plaintiff accused the defendant peace officers of "outrageous conduct" for ridiculing him, making comments and gestures indicating he was mentally ill, and accusing him of stealing petunias. An order of involuntary nonsuit was granted as to all of the defendants. The court affirmed the order, holding that the elements set forth in Restatement (Second) of Torts section 46 had not been met. Section 46 ultimately came to be embraced in Oregon as the basis of an IIED claim. The elements of this intentional tort are as follows:

(1) The defendant intended to inflict severe mental or emotional distress;

(2) The defendant's acts in fact caused the plaintiff to suffer such distress; and

(3) The defendant's actions constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841 (1995). The evolution of this tort in Oregon has revolved mostly around the first and third elements. See § 5.3-1(a) to § 5.3-1(b). See generally 1 Torts ch 3 (OSB Legal Pubs 2012).

To show that the defendant's conduct was outrageous, the plaintiff must provide sufficient detail about that conduct. Cantua v. Creager, 169 Or App 81, 95, 7 P3d 693 (2000) (directed verdict was appropriate when evidence of sexual harassment was too general to permit a finding of "outrageousness").

§ 5.3-1(a) Intent to Inflict Severe Emotional Distress

Until 1995, Oregon courts construed the element of intent to require pleading and proof that a defendant's conduct was undertaken for the express purpose of causing mental distress, unless a special relationship existed between the parties that required greater care by the defendant. Those decisions were abrogated by McGanty v. Staudenraus, 321 Or 532, 544, 901 P2d 841 (1995), which held that it is sufficient to allege that the defendant's actions were intentional, and that the defendant "knew or should have known" that those acts would cause severe emotional distress. The McGanty court reviewed over 25 years of its precedent and determined that some decisions had "blurred the intent and conduct elements of the tort" by adding "a purpose requirement to the intent element" and by indicating that "the nature of the relationship between the parties has some bearing on the level of intent required to impose liability for the tort." McGanty, 321 Or at 547-49 (abrogating on this ground Brewer v. Erwin, 287 Or 435, 600 P2d 398 (1979); Hall v. May Dep't Stores Co., 292 Or 131, 637 P2d 126 (1981); and Sheets v. Knight, 308 Or 220, 779 P2d 1000 (1989)).

The McGanty court clarified that the element of intent required for a claim of intentional infliction of severe emotional distress (IIED) is met when "the actor desires to inflict severe emotional distress, and also whe[n] he knows that such distress is certain, or substantially certain, to result from his conduct." McGanty, 321 Or at 550 (quoting Restatement (Second) of Torts § 46 comment i (1965)). The court further relied on the general definition of intent in the Restatement (Second) of Torts, which states that "the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." McGanty, 321 Or at 550 (quoting Restatement § 8A).

The McGanty court noted that its adoption of the Restatement standards was consistent with its earlier adoption of section 46 in Pakos v. Clark, 253 Or 113, 453 P2d 682 (1969). McGanty, 321 Or at 544-45, 551. This was a significant concession by the court, which until then had not explicitly acknowledged its acceptance of the Restatement standards as Oregon law. Hammond v. Cent. Lane Commc'ns Ctr., 312 Or 17, 25 n 6, 816 P2d 593 (1991) (affirming summary judgment in favor of defendants in a case in which decedent's wife brought action against 9-1-1 emergency dispatch system under theories of negligent and reckless infliction of severe emotional distress after dispatcher erroneously concluded that plaintiff's husband had died and therefore did not dispatch emergency medical personnel). McGanty did not discuss or attempt to harmonize Hammond.

Intent to cause emotional distress may be inferred from a defendant's conduct. Franklin v. Portland Cmty. Coll., 100 Or App 465, 470, 787 P2d 489 (1999) (holding that allegations of a continuing pattern of discrimination and retaliation against the plaintiff with an intent to demean and insult the plaintiff, if proved, were sufficient to establish the specific intent to cause plaintiff emotional distress); Miller v. D.F. Zee's, Inc., 31 F Supp 2d 792, 805 (D Or 1998).

A series of discrete acts may show a pattern of outrageous conduct but does not constitute a "continuing tort" even if the acts are connected in design or intent. Richer v. Poisson, 137 Or App 157, 160, 903 P2d 932 (1995).

It is still unclear whether recklessness is sufficient to establish the "intent" element of a claim for IIED. Cf. Restatement § 46 (permitting a claim based on "extreme and outrageous conduct" that "recklessly causes severe emotional distress"). Some pre-McGanty cases did appear to acknowledge a tort of reckless infliction of severe emotional distress. See, e.g., Hammond, 312 Or at 22 n 3; Bodewig v. K-Mart, Inc., 54 Or App 480, 486-87, 635 P2d 657 (1981), rev den, 292 Or 450 (1982). But such statements were generally based on the special relationship, found to exist in those cases, which justified a reduced level of intent. That rationale, however, was rejected in McGanty, 321 Or at 545, in which there was no claim or issue of reckless infliction of severe emotional distress, and thus the supreme court did not address it.

Since McGanty was decided, at least two federal district courts have held that "there is no cognizable claim for the reckless infliction of emotional distress" under Oregon law. Snead v. Metro. Prop. & Cas. Ins. Co., 909 F Supp 775, 779 (D Or 1996) (interpreting McGanty to have held that the element of intent is satisfied only if "the actor desires to bring about the consequences of the act or . . . knows that the consequences are certain or substantially certain to result from his act"). On appeal, however, the Ninth Circuit in Snead determined that it need not address the issue because, even "assuming [that] a cause of action for reckless infliction exists, [the plaintiff] failed to state such a claim." Snead v. Metro. Prop. & Cas. Ins. Co., No 96-35543, 1997 WL 345606, at *1, 1997 US App LEXIS 15219, at *3 (9th Cir June 20, 1997).

Oregon courts have thus far declined to adopt the tort of negligent infliction of severe emotional distress. Hammond, 312 Or at 22-27 (defendant's negligent conduct caused only emotional injury not accompanied by any actual or threatened physical injury or harm to a legally protected interest); see also Curtis v. MRI Imaging Servs. II, 148 Or App 607, 620, 941 P2d 602 (1997), aff'd, 327 Or 9, 956 P2d 9960 (1998) ("liability for negligent infliction of emotional distress must be grounded in a legal source beyond mere foreseeability"). In other words, in the absence of physical injury, there must be an invasion of a legally protected interest in order to trigger liability when negligence causes emotional distress.

In general, persons outside a patient-therapist relationship who are adversely affected by the patient-therapist relationship cannot recover mental-distress damages for IIED even if the therapist is substantially certain that the outsider will be emotionally harmed by the therapy. See Delaney v. Clifton, 180 Or App 119, 132, 41 P3d 1099, rev den, 334 Or 631 (2002); § 5.3-4 (discussing damages for mental distress for tortious conduct directed toward a third party).

§ 5.3-1(b) Conduct Sufficiently Outrageous to Be Actionable

Much of the controversy about this tort arises from the requirement that the defendant's conduct be "outrageous in the extreme," Rockhill v. Pollard, 259 Or 54, 60, 485 P2d 28 (1971), or, stated more precisely, "an extraordinary transgression of the bounds of socially tolerable conduct." McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841 (1995) (discussed in § 5.3-1(a)) (quoting Sheets v. Knight, 308 Or 220, 236, 779 P2d 1000 (1989), abrogated on other grounds by McGanty, 321 Or 532).

[T]he tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional
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