The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct
![handle is hein.journals/clr82 and id is 58 raw text is: The Right to Minimum Social Decency and the Limits
of Evenhandedness: Intentional Infliction of
Emotional Distress by Outrageous Conduct
Daniel Givelber*
Academics, rather than courts, were the prime movers in the development
of the tort of intentional infliction of severe emotional distress by outrageous
conduct; the modern tort was introduced in the pages of law reviews,' and
then refined and finally defined by the American Law Institute in its Restate-
ments.2 Despite these origins, or perhaps because of them, the tort, while
widely recognized, has not generated great scholarly interest.3 While this may
reflect a sense that the issues raised by this tort have long been settled or lack
contemporary relevance, the potential reach of the tort and its extraordinary
lack of defined standards command closer scrutiny. The tort provides recov-
ery to victims of socially reprehensible conduct, and leaves it to the judicial
process to determine, on a case-by-case basis, what conduct should be so
characterized. This is an unusual mandate and my purpose is to analyze how it
has been interpreted, with what results, and why.
The first part of this Article argues that the tort, despite its apparent
abundance of elements, in practice tends to reduce to a single element-the
* Professor of Law, Northeastern University. B.A., 1961, LL.B., 1964, Harvard University.
The author wishes to thank Richard Daynard, Karl Klare, Stephen Subrin, and Peter Schuck
for their helpful suggestions respecting earlier versions of this paper, and Mitchell King and Jamie
Sabino, then Northeastern law students, for their invaluable research assistance.
1. The most influential article was Magruder, Mental and Emotional Disturbance in the Law
of Torts, 49 Harv. L. Rev. 1033 (1936). Prosser also advocated recognition, Prosser, Intentional
Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874 (1939) [hereinafter cited as A
New Torti; Prosser, Insult and Outrage, 44 Calif. L. Rev. 40 (1956) [hereinafter cited as Insult
and Outrage], as did others, e.g., Borda, One's Right to Enjoy Mental Peace and Tranquility, 28
Geo. L.J. 55 (1939); Seitz, Insults-Practical Jokes-Threats of Future Harm-How New as
Torts? 28 Ky. L.J. 411 (1940); Vold, Tort Recovery for Intentional Infliction of Emotional
Distress, 18 Neb. L. Bull. 222 (1939); Wade, Tort Liability for Abusive and Insulting Language, 4
Vand. L. Rev. 63 (1950).
2. Restatement of the Law, Supplement, Torts § 46 (1948); Restatement (Second) of Torts
§ 46 (1965).
3. This is not to suggest that it has attracted no interest. There have been recommendations
for its reform. E.g., Hochman, Outrageousness and Privilege in the Law of Emotional
Distress-A Suggestion, 47 Cornell L.Q. 61 (1961) (arguing for replacement of outrageousness
test with one based on privilege); Theis, The Intentional Infliction of Emotional Distress: A Need
for Limits on Liability, 27 De Paul L. Rev. 275 (1977) (arguing that the law should protect
emotional tranquility only with respect to interests that are independently accorded legal protec-
tion). There have also been discussions of the tort's development in specific jurisdictions, e.g.,
Chopin, Emotional Distress Caused by Outrageous Conduct: A New Tort in Florida, 54 Fla. B.J.
262 (1980); Morrison, Outrage and Emotional Distress: New Directions in Tort Law, 34 J. Mo. B.
269 (1978); Sabin, Intentional Infliction of Emotional Distress-Seventeen Years Later, 66 I11.
B.J. 248 (1978); Smith, The Status of the Tort of Outrage as it Exists in Alabama and Other
Jurisdictions, 39 Ala. Law. 568 (1978), and analyses of its application in specific situations, e.g.,
Note, Intentional Infliction of Mental Distress in the Debtor-Creditor Relationship, 37 AIb. L.
Rev. 797 (1973); Note, A New Application of an Old Tort: Intentional Infliction of Mental
Distress Against Physicians and Hospitals, 83 Dick. L.J. 243 (1979).
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