“Forty years on … parted are those who are singing today.”

Edward E. Bowen, Forty Years On (1872)

This month — Saturday, Feb. 18, to be precise — marks the 40th anniversary of the recognition by the Minnesota Supreme Court of a new tort: intentional infliction of emotional distress.

The new cause of action came into existence in the state on that date, when the tribunal grudgingly permitted it to join the panoply of actionable claims in this state. But its incorporation into Minnesota jurisprudence was so reserved that even the ruling that acknowledged the cause of action refused to apply it on the facts of that litigation. The mixed messaging is symptomatic of the way the infliction tort has been treated in Minnesota law over the past four decades.

The Ruby anniversary of intentional infliction of emotional distress, stemming from the case of Hubbard v. United Press International, 330 N.W.2d 428 (Minn. Feb. 18, 1983), provides an opportune occasion to review the rise, evolution, devolution, and descent of that doctrine in this state.

Photographer’s fracas

The intentional infliction doctrine came about as a result of a fracas between award-winning photographer James Hubbard and his employer, United Press International (UPI) Formed in 1907, UPI grew into one of the leading news agencies in this country and for that matter, around the world for well more than half a century, providing news and other data at its height to some 6,000 media outlets. But it fell on hard times due to economic reasons and changing news gathering, reporting, and reading practices in the latter portion of the 20th century and has descended to a lower tier of media outlets.

After his discharge, the UPI employee claimant asserted a two principal claims, discrimination on the basis of disability due to alcoholism under the Minnesota Human Rights Act and a tort of intentional infliction of emotional distress, supplemented by a retaliatory discharge claim under the act.

After a grueling five-week trial in Hennepin County District Court, consisting of 400 exhibits and generating more than 2,000 pages of testimony, the jury deliberated for four days and returned a verdict in Hubbard’s favor on the claim of emotional distress for $42,000, along with $115,000 in punitive damages, along with a determination in an advisory capacity before the statute was amended more than three decades later to allow jury trials on human rights claims, that there had been discrimination on the basis of disability of alcoholism.

The judge later entered an award for the claimant for more over $54,000 in attorney’s fees and costs; punitive damage of $1,000, the maximum allowable at the time under the statute; and ordering his reinstatement.

Reviewing the evidence on appeal, the Supreme Court determined that it was “insufficient to sustain any of Hubbard’s claims.” The discrimination and retaliation claims were not viable because there was no “retaliatory motive,” and the decision to terminate him was made by UPI after it had legitimate performance reasons to fire him.

The intentional infliction claim also was overturned. But, in doing so, the court did recognize the cause of action as a matter of first impression in Minnesota. The trial court based its favorable determination on the provision in the Restatement (Second) of Torts, Section 46, which defines the tort as “for extreme and outrageous conduct intentionally or recklessly … [that] causes severe emotional distress.” While Minnesota had recognized damages for emotional distress accompanying other types of torts, it had not, at this juncture, ever recognized an independent claim for intentional infliction of emotional distress.

However, the Supreme Court, in a decision written by Chief Justice Douglas Amdahl, did “believe it is appropriate to recognize it in Minnesota at this time.”

Following the restatement, the court accepted the tort as articulated in that treatise, identifying four distinct elements necessary to sustain a claim: “extreme and outrageous” conduct; intentional reckless behavior; causing “emotional distress;” and “the distress must be severe.” The court pointed out that the restatement “emphasized the high threshold standard of proof,” defining it as conduct that is “so atrocious, it passes the boundaries of decency and is utterly intolerable to the civilized community,” a phrase used in prior Minnesota case law even before the tort was recognized as an independent cause of action.

The court’s grudging acceptance of the tort was underscored by its emphasis on the “limited scope of this cause of action,” which it felt necessitates “heavy” proof of the “severity of [the] mental distress,” a standard that is necessary in light of the “strong” public policy against “fictitious and speculative claims.” Objective expert testimony supporting the degree of severity of harm was urged to avert fictitious allegations that could cause “considerable potential for abuse of the judicial process.”

Application of these considerations, while recognizing the cause of action, led the court to conclude that the claimant failed to establish that UPI’s conduct was sufficiently outrageous and that Hubbard’s emotional distress, unsupported by medical testimony, was sufficiently severe to satisfy those prongs of the newly recognized cause of action. Thus, at least two essential elements were not satisfied in this case, leading to reversal of the jury verdict and the accompanying award of attorney’s fees and costs.

Rarely has a new cause of action been so rudely welcomed to the ranks of Minnesota jurisprudence.

Doctrine declines

In light of the court’s lukewarm reception of the new tort and the sizeable obstacles articulated by it, the doctrine has been treated inhospitably by courts in subsequent case law. Not surprisingly, the doctrine has fallen on hard times and declined in the past 40 years, much like its progenitor, UPI.

The zenith for intentional infliction claimants was reached and then submerged on appeal in Langeslag v. KYMN, Inc., 664 N.W.2d 860 (Minn. 2003). The case began as an action for sexual harassment whistleblowing by an employee against a radio station owner in Northfield, but it yielded a trial court verdict on a counterclaim by the employer against the employee for intentional infliction of emotional distress, of $535, 000. Following affirmative by the court of appeals, the Supreme Court accepted review and reversed the intentional infliction award, reasoning that the employee’s conduct “did not meet the high threshold to … establish extreme and outrageous conduct” and, therefore, could not sustain an intentional infliction of emotional distress claim. Further, the claimed distress consisted of the claimant’s subjective testimony, coupled with medical records, which did “fail to establish that [the] plaintiff’s conduct caused severe emotional distress.” The “inconclusive medical records [were] not sufficient to establish a causal connection between [the] plaintiff’s conduct and the emotional distress and the counter claimant failed to provide the appropriate method of proving the severity and causation … to medical testimony.”

The Supreme Court’s reversal of the large intentional infliction verdict in Langeslag was reflective of the trend of cases that go beyond the trial court, that reach the appellate court level in Minnesota.

Another reversal of a jury infliction verdict was grounded on similar reasoning in Harmon v. Mattson, 1999 WL 1057236 (Minn. Ct. App. Nov. 23, 1999) (unpublished). The appellate court overturned an intentional infliction verdict on grounds that the alleged conduct was not “sufficiently extreme and outrageous” and that the claimant’s “emotional distress” consisting of crying and hyper ventilating, supported by medical testimony, was insufficiently sever to “rise to the level of emotional distress,” warranting recovery.

A directed verdict against parents seeking to recover for intentional infliction of emotional distress on behalf of their children, who were sex-abuse victims, was another setback for claimants in Mrozka v. Archdiocese of St. Paul Minneapolis, 482 N.W.2d 806 (Minn. Ct. App. 1992) rev. den’d. (Minn. May 24, 1992). The parental distress caused by the sexual abuse was recognized by the Supreme Court to be “significant,” but it affirmed a lower court ruling by the Anoka County District Court that the claimed distress was not sufficient to overcome the high threshold required for an intentional infliction of distress verdict that requires harm that no reasonable person could be expected to endure.

These cases are among a legion of court decisions, most of them that do not even reach the appellate level rejecting intentional infliction claims on grounds of lack of sufficiently “outrageous” conduct or, more often, failure to establish through medical testimony the severity of the ensuing harm under the high barriers erected by Hubbard.

Legal losses

While these rulings tend to be fact-bound, rarely satisfying the Hubbard threshold, a number of other Minnesota decisions have focused on pure legal issues, which generally have been resolved unfavorably to claimants. E.g., Leaon v. Washington County, 397 N.W.2d 867 (Minn. 1986) (county not vicariously liable for salacious off-duty party by employees); Kelly v. City of Minneapolis, 598 N.W.2d 657 (Minn. 1999), reversed on immunity grounds of a jury determination that a police officer committed intentional infliction of emotional distress in connection with arrests following a brawl with individuals.

Infliction insurance

A number of unusual issues have involved intentional infliction litigation in Minnesota. In L.J.N. v. Fontaine, 1989 WL 103253 (Minn. Ct. App. Sept. 12, 1989)(unpublished), a decision by St. Louis County District Court refused to hold a pair of tortfeasors jointly and severally liable for damages relating to an intentional infliction of emotional distress claim in which the jury awarded a total of $68,400 as compensatory damages because there was no “reasonable basis” for the damages caused by the two tortfeasors to be “clearly separable,” which would permit distinct apportionment under Minnesota case law. Since there was no “distinct” assignment of responsibility to each, both of them must be jointly and severally liable for the compensatory damages awarded to the claimant, a minor child, who was subject to sexual abuse by the mother and live-in boyfriend over a six-year period.

A parishioner who had a sexual relationship with the pastor of a church in Fergus Falls, and her husband, were barred from pursuing an intentional infliction claim against the pastor, the church, and other bodies of the religious organization on grounds that the Establishment Clause under the First Amendment of the U.S. Constitution in Olson v. First Church of Nazarene, 661 N.W.2d 254 (Minn. Ct. App. 2003). The basis for the claim against that church’s governing district was its announcing the name of the woman to the congregation in connection with the pastor’s resignation.

An intentional infliction claim was precluded by the Establishment Clause of the First Amendment because its adjudication would necessitate “inquiry into a religious entity’s determination of what information … its congregation is entitled to know” and how to furnish it, because doing so “risks excessive entanglement of the court with church doctrine and procedure.” The intentional infliction claim could not be pursued based upon the dissemination of the woman’s name to the congregation in connection with explaining the reasons why the pastor resigned.

The role of insurance in these infliction claims also has been addressed. While intentional torts generally are excluded from liability insurance coverage, a duty to defend and indemnify may be imposed in certain circumstances. One of them occurred in Conquest v. North Star Mutual Insurance Company, 1996 WL 70010 (Minn. Ct. App. Feb. 20, 1996)(unpublished), in which a negligent infliction claim yielded a $113,101 verdict that included the determination that the claimant exhibited “physical manifestations or symptoms of the emotional distress,” which was necessary to its finding of liability for the negligent infliction of emotional distress under the “physical manifestation” requirement. That determination, the appellate court concluded, was binding upon the insurer, who did not participate in the underlying litigation, but was bound by that determination under its insurance policy for physical injuries.

Disability decisions

But a pair of disabled claimants managed to prevail on their infliction claims.

Conduct by an employer evincing mean-spirited and degrading conduct against a developmentally disabled employee was deemed to constitute actionable intentional infliction in Wenigard v. Johnson, 712 N.W.2d 190 (Minn. Ct. App. 2006). The employer’s boorish behavior included “name calling” and “taunting,” which contributed to the disabled employee’s traumatic stress and as his condition “materially deteriorated.” This behavior was sufficiently “extreme and outrageous” to satisfy that prong of the intentional infliction doctrine, and the employee’s stress, which consisted of nightmares, crying spells, and feelings of hurt, coupled with physical illness and deterioration, was “indicative of the stress that no reasonable person could be expected to endure.” Expert testimony established actionable, “severe” distress and warranted upholding the determination of liability.

Another disabled claimant was entitled to pursue a claim of intentional infliction of emotional distress, coupled with false imprisonment and disability discrimination based upon a Metropolitan Council bus driver’s alleged harassment and belittling comments, coupled with a refusal to assist the disabled passenger who was wheel chair bound in Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216 (Minn. 1998). The Supreme Court rejected the argument that the passenger’s claim was barred by official immunity. That defense did not apply because the bus driver’s conduct was “not discretionary.”

Negligence nuances

The new doctrine of intentional infliction of emotional distress developed an offspring, negligent infliction, which the court described in Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902 (Minn. Ct. App. 1987) rev. den’d. (Nov. 13, 1987) as consisting of claimants who reasonably fear for their own safety while within a “zone of danger of physical impact” and then suffer “severe emotional distress with resultant physical injury.” That tenet had been articulated prior to Hubbard, in Stadler v. Cross, 295 N.W.2d 552, 553 (Minn. 1980), but it did not redevelop until after the Hubbard decision. But the negligence doctrine was, like its intentional infliction kin, subject to severe restrictions. The most notable was the “zone of danger” feature, as well as the necessity for some type of “physical” injury.

In many cases, the absence of one feature, or both, negated the claims. The Bohdan case exemplified this tendency where an intentional infliction claim was rejected due to “failure to link [the plaintiff’s] disorder” to the alleged misconduct, and the negligence claim failed because the claimant was not within the zone of danger nor suffered any physical injury. The court did offer some potential salvation for negligent infliction claimants, in that they could pursue claims, even in the absence of zone of danger or physical injury if there was a “direct invasion of [the plaintiff’s] rights, such as defamation, malicious prosecution or other willful, wanton or malicious conduct.” Under this rationale, there must be an independent tort claim, often defamation, to bolster a negligence infliction claim that, like most, is devoid of physical injury as zone of danger or physical injury elements.

That precept has never been formally approved by the Supreme Court. Meanwhile, it is subject to various nuances by the Court of Appeals, making the principle murky, at best. In Lickteig v. Alderson, Ondov, Leonard & Sween, 556 N.W.2d 557 (Minn. 1996), a legal malpractice action, the Supreme Court commented upon the “limited circumstances,” in which emotional distress can be recovered, referencing the “direct violation of the plaintiff’s rights by willful, wanton, or malicious conduct,” as referenced in Bohdan and other case law.

Federal frailties

State court cases have not been alone in highlighting the frailties of the negligent prong of infliction claims.

A number of federal cases have limited its scope by declining to recognize the Bohdan exception because of its apparent conflict with Minnesota Supreme Court case law. See Hayes v. Blue Cross Blue Shield of Minnesota, Inc., 21 F. Supp.2d 960 (D. Minn. 1998); Neppl v. Signature Flight Support Corp., 234 F. Supp.2d 1016 (D. Minn. 2002). In addition to granting summary judgment in the absence of physical manifestations, as these cases did and other federal case law, federal judges here have declined to extend liability for negligent infliction cases in which the claimant has not been in the “zone of danger.” E.g., Meyer v. Tenvoorde Motor Company 714 F. Supp. 991 (D. Minn. 1989); Armstrong v. Target Corp., 2010 WL 4721062 (D. Minn. Nov. 15, 2010) (unpublished).

Inglorious infliction

Despite these setbacks, intentional infliction clauses still are often pleaded as supplementary cause of action in other tort cases, like defamation, invasion of privacy, and other behavior, which has an allegedly unfavorable personal impact on individuals.

But these claims often are disposed of unfavorably for claimants by summary judgment at trial court levels and often affirmed on appeal.

Nonetheless, the doctrine continues to exist, 40 years after Hubbard. But its inglorious initiation in the Hubbard case presaged its diminished vitality over the years. While it still survives, intentional infliction has seen its share of tribulations, mixed with a few triumphs over its four-decade existence.

PERSPECTIVES POINTERS

Elements of Intentional Infliction Claims