Nebraska's (more or Less) Stable Approach to "extreme and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon Ex Rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.w.2d 604 (2001)

• Publication year: 2021

81 Nebraska L. Rev. 1287. Nebraska's (More or Less) Stable Approach to "Extreme and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001)

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Note*

Matthew M. Munderloh

Nebraska's (More or Less) Stable Approach to "Extreme and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001)

TABLE OF CONTENTS

I. Introduction ......................................... 1288
II. Factual Background of Brandon ........................ 1290
III. Relevant Law: The Legal Framework of
IIED in Nebraska ..................................... 1296
A. Section 46 of the Restatement (Second) of Torts ... 1296
B. Past IIED Claims Brought Before the
Nebraska Supreme Court ............................ 1298
IV. Analysis of Brandon ex rel. Estate
of Brandon v. County of Richardson ................... 1301
A. Brandon Is Generally Within
the Parameters of Section 46 ...................... 1302
B. The Court's Emphasis on Laux's
Tone of Voice Is Questionable ..................... 1304
C. "Extreme and Outrageous Conduct" in Nebraska:
Just How Slippery Does Brandon Make the Slope? ... 1305
1. Concerns of a Slippery Slope Quieted:
Section 46 Stands Strong ...................... 1306
2. Uncertain but Predictable: Language-Based
Conduct and the Future of IIED in Nebraska .... 1310
V. Conclusion ........................................... 1312

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I. INTRODUCTION

When Teena Brandon ("Brandon") left Lincoln, Nebraska, for Richardson County, Nebraska, in November 1993, little did she know of the events that would unfold during the 1993 holiday season. First, Brandon would be beaten and raped by two male acquaintances, John L. Lotter ("Lotter") and Thomas M. Nissen ("Nissen"), on early Christ-mas Day.(fn1) Then, after reporting the rapes to the authorities, Brandon would endure a long and grueling investigative interview conducted by Richardson County Sheriff Charles B. Laux ("Laux"), during which Laux would use insensitive, if not utterly vulgar, language and would ask Brandon questions which he would later admit were entirely irrelevant to whether Brandon had been raped. Finally, on December 31, 1993, Brandon and two of her friends would be found murdered in a rural Humboldt, Nebraska, farmhouse in Richardson County.(fn2)Lotter and Nissen would later be charged with and convicted of murdering Brandon and her two friends.(fn3)

After Brandon's murder, JoAnn Brandon, Brandon's mother and personal representative of Brandon's estate, brought suit against Richardson County and Laux, alleging wrongful death, negligence in failing to protect Brandon, and intentional infliction of emotional distress ("IIED") inflicted on Brandon prior to her murder.(fn4)This Note

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discusses only the IIED claim, which was based on Laux's conduct toward Brandon on December 25, 1993 when he interviewed her about the reported rapes. In short, JoAnn Brandon alleged that Laux's conduct toward her daughter throughout the course of the investigative interview was "extreme and outrageous." In Brandon ex rel. Estate of Brandon v. County of Richardson,(fn5)the Supreme Court of Nebraska agreed and held that Laux's conduct toward Brandon was "extreme and outrageous" as a matter of law.(fn6)

But how did the court come to reach the conclusion that Laux's conduct was "extreme and outrageous," given that his conduct consisted of nothing more than interviewing, at that point, an alleged rape victim? What standard did the court use? And was that standard liberal, consistent, or restrictive in light of the legal framework that the court had utilized in past IIED claims? By holding that Laux's language-based conduct was "extreme and outrageous" as a matter of law, does the court in Brandon evidence a judicial trend in Nebraska toward a more permissive approach to IIED claims, in gen

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eral, and to "extreme and outrageous" conduct, in particular? The answer to this last question is, simply put, both yes and no.

On the one hand, certain portions of Brandon might give rise to some concerns that the Nebraska Supreme Court is becoming more, perhaps too, liberal in its approach to "extreme and outrageous conduct" and IIED claims. Admittedly, Brandon does appear to illustrate a more liberal approach to IIED when compared with past Nebraska IIED cases. On the other hand, Brandon is still largely in keeping with the overall standard and reasoning set forth in section 46 of the Restatement (Second) of Torts, which the Nebraska Supreme Court has rigorously employed in past IIED claims brought before it. Further, Brandon gives no serious indication that the court has any intention of developing any standard of recovery for IIED claims significantly different from that set forth in section 46 of the Restatement. Similarly, there is no indication that the court has fallen prey to a slippery slope whereby all sorts of conduct could be deemed "extreme and outrageous." Consequently, Brandon illustrates Ne-braska's (more or less) consistent approach to "extreme and outrageous conduct" and IIED.

Part II of this Note discusses the factual background of Brandon and sets forth Laux's conduct in greater detail. Part III presents the legal framework, including a survey of past Nebraska IIED cases, upon which Brandon can be analyzed. Part IV analyzes the Nebraska Supreme Court's decision in Brandon, beginning with a brief discussion of what standard of recovery the court used. Part IV then continues with an analysis of whether more specific portions of the court's reasoning in Brandon are in keeping with the court's past standard of recovery for IIED and whether Brandon will lead to a slippery slope regarding what kinds of conduct are "extreme and outrageous" for the purposes of IIED claims in Nebraska. This Note concludes by suggesting that Brandon is largely in keeping with the standards and recommendations of section 46 of the Restatement (Second) of Torts and further explains how Brandon sheds light on the Nebraska Supreme Court's (more or less) stable approach to IIED claims and "extreme and outrageous conduct."

II. FACTUAL BACKGROUND OF BRANDON

Sometime after Brandon moved to Richardson County, Lotter and Nissen, both acquaintances of Brandon, became suspicious of Brandon's sex.(fn7)On the evening of December 24, 1993, Nissen had a party

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at his home, during which Nissen and Lotter pulled Brandon's pants down in an attempt to prove that Brandon was a female. On the morning of December 25, 1993, Lotter and Nissen beat Brandon and then drove her to a remote location where both men proceeded to rape her. After Nissen beat Brandon again, all three returned to Nissen's home. Once there, Brandon eventually escaped by kicking out a bathroom window. Brandon ran to a friend's home and was then transported to a local hospital for a rape examination. The examination indicated that Brandon had indeed been sexually penetrated just hours before.(fn8)

Later that same day, Brandon provided a written statement to the Falls City Police Department regarding the rapes,(fn9)even though Lotter and Nissen had threatened her life if she reported the rapes to anyone.(fn10)Laux and Tom Olberding ("Olberding") of the Richardson County Sheriff's Office then conducted a tape-recorded investigative interview with Brandon regarding the rapes. After Laux and Olberding conducted an initial interview together, Laux, by himself, again asked Brandon to recount the details of the rapes.(fn11)This interview between Laux and Brandon was also tape-recorded. It was this interview that gave rise to the IIED claim in Brandon.

During the interview, Laux first questioned Brandon about the incident that occurred at Nissen's house where Lotter and Nissen pulled down Brandon's pants. The following exchanges took place between Brandon and Laux.

[Laux:] [A]fter he pulled your pants down and seen you was a girl, what did he do? Did he fondle you any? [Brandon:] No. [Laux:] He didn't fondle you any, huh. Didn't that kind of amaze you? . . .Doesn't that kind of, ah, get your attention somehow that he would've put his hands in your pants and play with you a little bit?

. . . . [Laux:] [Y]ou were all half-ass drunk. . . . I can't believe that if he pulled your pants down and you are a female he didn't stick his hand in you or his finger in you. [Brandon:] Well, he didn't. [Laux:] I can't believe he didn't.(fn12)

Laux then proceeded to question Brandon about the rapes. Included among Laux's statements and questions were the following: "So they got ready to poke you"; "[T]hey tried sinking it in your vagina"; "So then after he couldn't stick it in your vagina he stuck it in

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your box or in your buttocks, is that right?"; "[D]id it feel like he stuck it in very far or not?"; "Did he tell you anything about this is how they do it in the penitentiary?"; "Was he enjoying it?"; "Did he think it was funny?"; "Did he play with your breasts or anything?"; and "Well, was he fingering you?"(fn13)

Laux then inquired about the position of Brandon's legs when Nissen sexually assaulted her. The following exchange took place: [Laux:] How did you have your legs when he was trying to do that? [Brandon:] He had them positioned on each side and he was positioned in between my legs. [Laux:] You had your legs, ah, your feet up around his back or did you just have them off to the sides or what? [Brandon:] I had one foot on the floor and the other on the seat. . . . . [Laux:] He had you on the back seat and you had one leg on the seat the one leg up up over the front seat or where? [Brandon:] One leg on the floor and the other just laying [sic] on the seat not on top of the guy. [Laux:] You had one leg on...