10 Intentional Infliction of Emotional Distress (“IIED”)


  • Intent: either reckless or intentional, plus
  • Conduct that is extreme and outrageous and
  • Causes severe emotional distress

As noted in the introduction to Module 2, IIED was an outlier among the intentional torts rather than a creature of the writ system. Its elements reflect some of the uncertainty and compromises that led to its eventual adoption. First, its intent standard is lower than the usual intent standard in that it permits either intent or recklessness (which is a higher culpability standard than negligence but lower than intentional action). The second prong requires both extreme and outrageous behavior. Sometimes conduct is outrageous but happens only once and may fail to qualify as extreme. More commonly small irritating actions can, when done over many months or years, rise to a level that causes the conduct to qualify as extreme and outrageous. The conduct, however, is indeterminate—that is, not specified in advance. This indeterminacy is why the tort’s harm standard is heightened. Recall that in battery and trespass, no harm even need be proven; by contrast with IIED the harm must demonstrably exist and be severe. Its amorphous shape and its emphasis on emotional evidence has led courts to disfavor it or to refuse to adopt it in many instances. In some jurisdictions, the tort is only allowed where the facts provide an alternate theory of recovery; in others the tort is a “gap-filler” and available only where no other means of redress exists. The severe emotional distress is measured subjectively, not objectively. In theory, all prongs of the doctrine are questions of fact for the jury. In practice, the “outrageousness” element is frequently decided by a judge.

Questions or Areas of Focus for the Readings

  • What’s different about IIED’s intent standard? What might that reflect?
  • What are the risks and benefits of having a flexible, fact-specific standard for “extreme and outrageous” conduct?
  • What else differentiates IIED from the core intentional torts you have learned?

Mitchell v. Giambruno, Supreme Court, Appellate Division, Third Department, New York (2006) (35 A.D.3d 1040)

Plaintiffs are a same-sex couple who purchased and moved into a house in the Village of Dannemora, Clinton County, in 1999. In this action commenced in November 2002, plaintiffs accused defendants, their neighbors, of, among other things, the intentional infliction of emotional distress. As the result of a jury verdict, plaintiff Susan Mitchell was awarded the sum of $50,000 and plaintiff Elizabeth Meseck was awarded $35,000. Defendants Michael Giambruno, Corrine Giambruno and Kimberly Granmoe (hereinafter collectively referred to as defendants) [fn] appeal, contending that plaintiffs’ trial evidence was insufficient to support the alleged cause of action.

It is well settled that in a cause of action for intentional infliction of emotional distress, a plaintiff must plead and prove four elements: (1) extreme and outrageous conduct; (2) the intentional or reckless nature of such conduct; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress [cc]. Plaintiffs’ trial evidence reveals that the interaction between plaintiffs and defendants began as a result of what may fairly be characterized as a boundary line dispute. This dispute escalated and a criminal trespass complaint was filed by the Giambrunos against Mitchell and a restraining order was issued against her. Thereafter, for approximately two years, defendants conducted what can only be characterized as a relentless campaign of lewd comments and intimidation directed at plaintiffs and their lifestyle, both in private and in public. The final act prior to the institution of this action occurred when defendants constructed two mock grave sites on the Granmoes’ property directly facing plaintiffs’ home, which created a fear in plaintiffs that the graves were intended for them.

*1042 Although insulting language intended to denigrate a person may not, in and of itself, rise to the required level of extreme and outrageous conduct, liability may be premised on such expressions where, as here, defendants’ campaign of harassment and intimidation is constant. [cc] Accordingly, we conclude that this record contains sufficient evidence to support the jury’s determination that the first two elements of the cause of action have been proven, i.e., that the conduct of the defendants was extreme, outrageous and intentional.

Defendants’ arguments that plaintiffs failed to prove a causal connection between defendants’ conduct and plaintiffs’ illnesses is based on plaintiffs’ failure to ask either medical witness for an opinion concerning causation and because defendants allege that plaintiffs had other stressors in their lives. We are unpersuaded by either argument. Insofar as a participant (as compared to a bystander) is concerned, where a duty owed the participant is breached, resultant injury is compensable only if it is a direct (not consequential) result of the breach [cc]. Here, the evidence of direct injury from the breach is manifest. Nurse practitioner Paula Covey testified on behalf of Mitchell, and physician Richard Webber testified on behalf of Meseck. Both testified concerning their training and experience in diagnosing and treating anxiety and depression and the resultant physical manifestations, if any. Both testified that plaintiffs were patients in their office prior to and during the two years encompassed by defendants’ conduct. Each testified that their patients’ level of anxiety increased as did the depth of their depression as they continued to complain about defendants’ conduct, the necessity of retaining counsel, the lawsuit and the trial. The frequency with which plaintiffs sought treatment, as well as their medication to control their conditions, increased during this period. Covey testified to Mitchell’s resultant indigestion, diarrhea and irritable bowel syndrome and her hospitalization for brief periods on more than one occasion.

Given this testimony, we conclude that the causal connection between defendants’ conduct and plaintiffs’ illnesses was well within the ken of the ordinary lay juror and the medical practitioner’s opinion as to causation would be mere surplusage. Moreover, given the timing of the events, the jury could rationally conclude that the *1043 other stressors—Mitchell’s job stress, Meseck’s stress in caring for Mitchell’s 101–year–old grandmother and the arguments they had with each other over whether to retain counsel and sue—all were temporarily related to defendants’ conduct and were caused or exacerbated by them. Finally, the jury could rationally conclude from the evidence that the emotional distress of each plaintiff was severe.

To the extent not hereinabove discussed, we have considered defendants’ remaining arguments and found each to be lacking in merit.

ORDERED that the judgment is affirmed, without costs.

Note 1. Given that insulting language alone is almost never enough to qualify as “extreme and outrageous,” what additional facts or factors seem to have driven the court’s ruling?

Note 2. As you continue to learn about IIED. you will see that it serves particular purposes that reflect societal values at different moments in time. Consider whether its elements and application create an optimal balance. Should sociological factors and differences of identity be taken into account when evaluating whether particular behavior is “extreme” and/or “outrageous”? What is the risk of incorporating particular perspectives and what are the costs of not doing so?

Note 3. IIED claims often fail when plaintiffs do not show a significant change to their sense of wellbeing. Fairly or unfairly, courts struggle to find that change when plaintiffs are dispositionally nervous or depressive; if they are generally happy people who undergo significant change because of the extreme and outrageous conduct of the defendant, the IIED claim stands a higher chance of success. In one sense, this simply reflects the requirement that the distress be “severe.” In another sense, however, it may stack the deck in favor of particular kinds of personalities and temperaments, biasing the law against others. Should tort law treat all plaintiffs equally no matter their backgrounds or dispositions? Is the eggshell plaintiff doctrine reconcilable with this default of permitting recovery only in cases where a plaintiff didn’t start out with signs of any distress?

Note 4. At common law, there was a firm rule against recovering for purely emotional distress under Lynch v. Knight, 9 H.L.C. 577, 598 (1861) (“mental pain or anxiety the law cannot value, and does not pretend to redress.”) However, in the late 1930s, two torts jurists charted judicial departures from that norm and were able to categorize them in service of an argument that courts had been allowing recovery for emotional distress. Calvert Magruder, a judge on the Court of Appeals for the First Circuit and William Prosser, the torts scholar and academic, were both drafters of the Restatement and would eventually be responsible for introducing the tort of IIED. Among the documented exceptions to the Lynch rule were insults or abuse by common carriers (as you saw in Luther and Henderson); harassment by creditors wielding power over debtors; cruel or vicious practical jokes; stalking or significant sexual harassment; and claims for mishandling bodily remains or interference with death and death rituals.

Today, the fact patterns that tend to fall into “extreme and outrageous” conduct include some aspects of those three clusters. For instance, if defendant’s conduct is continuous or ongoing, liability is likelier. If a plaintiff has no practical way out (because they are in the care or custody of an entity) or lacks the power to make a change (because of a power dynamic or economic coercion), again the conduct tends to be judged more harshly against the defendant. Similarly, if there is a potential abuse of authority, a finding of outrage is likelier. As you evaluate IIED fact patterns, look at the relationships involved: were the parties in a hierarchical relationship, such as landlord/tenant, supervisor/employee, professor/student or creditor/debtor? Was there a conflict of professional interest? It may go without saying but where there is evidence that the defendant knowingly exploited the plaintiff’s vulnerable condition or particular sensitivity, the plaintiff’s case strengthens. Along those lines, where the defendant is shown to have lied or to have a secret intent to inflict harm, the conduct is likelier to be found outrageous.

Banks v. Fritsch, Court of Appeals of Kentucky (2001)
(39 S.W.3d 474)

The appellant, Wade Banks, brought this complaint against the appellee, John Fritsch, alleging false imprisonment, assault and battery, and outrageous *476 conduct. A jury trial was conducted on July 21, 1999. At the close of Banks’s case, the trial court directed a verdict in favor of Fritsch, finding that Banks had failed to present evidence that he had been damaged by Fritsch’s conduct. We find that the trial court erred in dismissing the claims for false imprisonment and assault and battery as there was sufficient evidence of emotional damages to warrant submitting the issue to the jury. However, we also conclude that the tort of outrageous conduct is not available under the facts presented in this case. Hence, we reverse the trial court in part, affirm in part, and remand this action for a new trial.

Since the trial court dismissed this action on a motion for a directed verdict, we shall view the evidence in the light most favorable to the appellant. In June 1996, Banks was 17 years old and was a Junior at Bourbon County High School. His last class of the school day was Agriculture Wood Construction, taught by Fritsch. By his own admission, Banks had either skipped the class or left the class early on a number of occasions during that semester.[1] Banks testified that, while he was walking to the class on June 4, another student told him that Fritsch had a chain, and was planning to chain Banks up to keep him from skipping class. Nevertheless, Banks proceeded to the class.

Banks testified that when Fritsch walked into the classroom, he had a large log chain over his shoulder and had several key locks on his belt loop. Fritsch then told Banks that he was going to keep him from leaving the class early. After taking roll, Fritsch directed Banks to put his leg up on a chair so he could put the chain around Banks’s ankle. Banks states that he initially protested, and then went along after Fritsch repeated the instruction. Fritsch secured the chain around Banks’s ankle, and led him outside to an area where the class was painting feed troughs. Fritsch then put the chain around a tree, locked it, and told Banks not to go anywhere.

The entire class followed Fritsch and Banks from the classroom to the tree. After Banks was secured to the tree, Fritsch returned to the classroom and the other students went on with their projects. Banks sat down under the tree, removed his shoe and began trying to work the chain loose. After several minutes, Banks was able to remove the chain from his ankle, and he then attempted to leave the school premises. Several of his classmates chased Banks down, tackled him, and then carried Banks back to the tree. Fritsch returned, placed another chain around Banks’s neck, and then secured it to the chain around the tree.

Banks testified that he initially stood up and held the chain to keep its weight off of his neck. After about fifteen minutes, he got tired of holding the chain, so he sat down and began crying. Banks told another student that the chain was bothering him, and the student went to tell Fritsch. Several minutes later, Fritsch came and removed the chain from Banks’s neck. However, Fritsch then secured the other chain tightly around Banks’s ankle.

Thereafter, Fritsch and Banks began discussing his grades in the class and what it would take from him to pass. Fritsch returned to the classroom to check his records to see if Banks was in a position to pass the class. Upon returning five minutes later, Fritsch told Banks that he could pass the class if he painted the three remaining *477 feeder and mineral troughs. Banks agreed and Fritsch removed the chain. Banks subsequently finished the painting assignments, and he received a passing grade in Fritsch’s class. Banks testified that the chaining incident took place over a period of about an hour and a half.

Fritsch’s account of the incident differs only slightly in the details, but markedly in tone. Fritsch testified that the idea of chaining Banks started as a joke between him and the other students in the class. Several days prior to the incident, Fritsch made an off-hand comment in front of the class to the effect that perhaps he should chain the truant boys to keep them from skipping class. On June 4, as Banks was arriving for class, the other students reminded Fritsch of this statement. After some prodding from the class, Fritsch decided to go forward with the plan.

Fritsch further testified that Banks never objected to the chaining, and in fact, he went along with the joke and appeared to enjoy the attention. Fritsch did not recall placing the chain on Banks’s leg in the classroom and leading him outside. This testimony was contradicted somewhat by another teacher, Ralph Speakes, who saw Banks leaving Fritsch’s classroom with the chain around his ankle. However, Speakes also testified that everyone (including Banks) seemed to be laughing about it. In addition, Fritsch states that after Banks managed to remove the chain the first time, he called it to the attention of the other students and dared them to catch him. Several students informed Fritsch about Banks’s escape, and they asked Fritsch what they should do about it. Fritsch told them that Banks should come back and finish the project, but he stated that he did not tell any of the students to bring Banks back. Speakes testified that Banks appeared to be leading the chase, and after the students caught up with Banks, they merely led him back to the class area. Fritsch denied that Banks ever showed that he was upset about the chaining or that he ever asked for the joke to stop, except for when Banks complained about the chain around his neck. Fritsch steadfastly denies that the chaining was intended as a punishment, or that he ever intended to hurt or humiliate Banks. Rather, Fritsch merely intended it as a light-hearted prank to impress on Banks the importance of staying in class and finishing his assignments. Fritsch further stated that the entire incident took place over 25 to 30 minutes.[2]

Banks testified that he was deeply upset by the chaining and thought about it often. After the incident was publicized, he states that other students gave him a hard time about it on several occasions. He also received a lot of unwelcome and negative media attention over the incident. In response, he decided that he could not return to Bourbon County High School in the fall. Instead, he went to live with his father and attended his senior year of high school in Columbia, Missouri. Banks testified that the move was traumatic for him, and it was difficult for him to fit in at his new school.

Banks saw a psychologist to discuss his feelings once prior to the move to Missouri. Banks further testified that sometimes he has flashbacks and sometimes starts to cry over memories of the chaining. His family members stated that Banks had a hard time dealing with the incident and often seemed withdrawn. However, there was no expert testimony describing Banks’s emotional state following the chaining.

At the close of Banks’s case, the trial court granted Fritsch’s motion for a directed verdict. The court determined that *478 there was enough evidence to establish that a false imprisonment and an assault and battery occurred. However, the court concluded that there was no evidence that Banks had been damaged by Fritsch’s conduct. The trial court stated on the record:

I mean, this strikes me as being exactly what it’s characterized as, a prank, and perhaps one that was not appreciated by Mr. Banks and I can understand that, but I don’t see that there’s been any harm done here. Clearly, Mr. Fritsch should not have done this. He’s been told that by a number of people, I think he realizes that. The fact is it happened, and basically there seems to be no harm, no foul here. And I haven’t been proved-it hasn’t been proven to me, and therefore I don’t think the jury can find that there are damages here that Mr. Banks has suffered. There’s evidence of that, I don’t think that that is significant at this point. I think on the basis of the damages issue, that I am going to direct a verdict here in favor of Mr. Fritsch on all of these counts. I just don’t think the jury has enough evidence to decide that Mr. Banks has been damaged by the incidence [sic], that it has been proven to then happen.

The trial court’s written order granted the directed verdict for Fritsch based upon the oral findings in the record. Banks now appeals, arguing that there was sufficient evidence of damages to warrant submitting the issue to the jury. He further argues that he was also entitled to an instruction on punitive damages.

Fritsch responds that the trial court properly granted his motion for a directed verdict because Banks failed to establish the elements of false imprisonment, assault and battery, and outrageous conduct. However, the trial court specifically granted the directed verdict based upon lack of evidence to establish that Banks was damaged by Fritsch’s actions. Moreover, the trial court found that Banks had presented sufficient evidence to create a jury issue on his claims alleging false imprisonment and assault and battery. Since Fritsch did not file a cross-appeal contesting this finding, this appeal is limited to the question of whether Banks presented sufficient evidence of damages to overcome Fritsch’s motion for a directed verdict.

On a motion for directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion. When engaging in appellate review of a ruling on a motion for directed verdict, the reviewing court must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.[3] Once the issue is squarely presented to the trial judge, who heard and considered the evidence, a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous.[4] However, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ. Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts, as well as matters affecting the credibility of witnesses.[5]

In order to consider the propriety of the trial court’s decision to grant the motion for a directed verdict, we must first consider the nature of the claims asserted by Banks. The action for the tort of false imprisonment, sometimes called false arrest, is a lineal descendant of the old action of trespass to person. It protects the personal interest in freedom from physical *479 restraint.[6] The interest involved is “in a sense a mental one,” and false imprisonment may be maintained without proof of actual damages.[7] The tort is complete after “even a brief restraint on the plaintiff’s freedom,” and the plaintiff may recover nominal damages.[8] The plaintiff is entitled to compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health. Since the injury is in large part a mental one, the plaintiff is also entitled to damages for mental suffering, humiliation and the like.[9]

Kentucky cases define false imprisonment as being any deprivation of the liberty of one person by another or detention for however short a time without such person’s consent and against his will, whether done by actual violence, threats or otherwise.[10] Furthermore, false imprisonment requires that the restraint be wrongful, improper, or without a claim of reasonable justification, authority or privilege.[11] Fritsch’s potential liability does not arise out of his efforts to keep Banks from leaving the class, and there is no contention that Fritsch was acting within the scope of his authority as a teacher. Rather, Fritsch’s primary defense is that there was no imprisonment because Banks consented to being chained.

There are no Kentucky cases which directly discuss what evidence is necessary to prove damages from false imprisonment. However, a number of cases are instructive insofar as they address evidentiary issues relating to submission of the issue of damages to the jury. In Butcher v. Adams,[12] the plaintiff’s testimony that he was humiliated by his false arrest on charges relating to the operation of his tavern was mitigated by evidence that he had previously been arrested on similar charges. The court noted that this evidence was sufficient for the jury to consider whether the plaintiff had actually been embarrassed by the false imprisonment.

In Bradshaw v. Steiden Stores, Inc.,[13] a store patron was detained for an hour while the store owner checked on the validity of her check. The store owner then told her to go to a back room, where briefly the patron was questioned by two policemen. Once the validity of the check was established, the patron was allowed to go. The former Court of Appeals acknowledged that the patron had established a “borderline” case of false imprisonment. However, the Court noted that there was no evidence that the patron had been unnecessarily humiliated or embarrassed by the incident. Since at most the evidence would have justified an award of nominal damages, the Court concluded that the directed verdict in favor of the store owner was not reversible error. Similarly, in SuperX Drugs of Kentucky, Inc. v. Rice,[14] this Court held that, in an action for false imprisonment where the person is subsequently and properly charged with the commission of a felony, she can recover damages only for that mental suffering and embarrassment *480 which she endured during the period prior to her arrest. Under these circumstances, this Court concluded that the plaintiff was entitled to no more than nominal damages, and the jury’s award of $75,000.00 in compensatory damages was clearly excessive.

The common thread among all these cases is that a plaintiff may be entitled to at least nominal damages arising from the humiliation, emotional distress or damage to reputation caused by the false imprisonment. “Humiliation and embarrassment are, by their nature, not easily quantified….”[15] Nevertheless, the degree of humiliation or embarrassment actually suffered by the plaintiff is a factual matter for the jury to decide.

There was clearly a factual issue concerning whether Fritsch’s conduct constituted an unlawful imprisonment of Banks. Furthermore, Banks testified that he suffered humiliation, embarrassment, emotional distress and he was held up to the ridicule of his peers by being publicly chained. There was contrary evidence that Banks did not express any distress during the chaining. Nevertheless, we are satisfied from the record that the jury could have returned a verdict for Banks for an amount greater than nominal damages. Consequently, we find that the trial court’s decision to dismiss this claim was erroneous.

Banks’s second claim is that Fritsch’s conduct amounted to an assault and battery. Assault is a tort which merely requires the threat of unwanted touching of the victim, while battery requires an actual unwanted touching.[16] Since intent is an essential element of assault and battery, the trial court properly left to the jury the issue of Banks’s consent to the chaining.[17] However, a plaintiff need not prove actual damages in a claim for battery because a showing of actual damages is not an element of assault or battery and, when no actual damages are shown for a battery, nominal damages may be awarded.[18] Furthermore, a recovery for emotional distress caused by the assault or battery is allowable as an element of damages in an action based upon those torts.[19] Consequently, we find that the trial court’s dismissal of Banks’s claims for assault and battery also was erroneous.

Banks’s third claim was that Fritsch’s conduct amounted to the tort of outrageous conduct. The trial court did not address this claim, but presumably the court’s finding that Banks failed to prove damages applies to this claim also. The tort of intentional infliction of emotional distress, or outrage, was first recognized in Kentucky in Craft v. Rice.[20] In that case, the Kentucky Supreme Court adopted the following portion of Section 46 of the Restatement (Second) of Torts:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.[21]

In order to recover, the plaintiff must show that defendant’s conduct was intentional or reckless, that the conduct was so outrageous and intolerable as to offend generally accepted standards of morality and decency, that a causal connection *481 exists between the conduct complained of and the distress suffered, and that the resulting emotional stress was severe.[22] An action for outrage will not lie for “petty insults, unkind words and minor indignities”; the action only lies for conduct which is truly “outrageous and intolerable.”[23]

In addition, the tort of outrage is intended as a “gap-filler,” providing redress for extreme emotional distress where traditional common law actions do not. Where an actor’s conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.[24]

We have previously held that Banks may be able to recover emotional damages arising from false imprisonment, assault or battery. Hence, Banks must show that Fritsch’s actions were intended only to cause him extreme emotional distress, rather than to merely touch or to deprive him of his liberty. We find no evidence in the record which would support such a finding by the jury. As a result, Banks’s claim of outrageous conduct would not be appropriate in this case, and the trial court properly granted a directed verdict on this cause of action.

Lastly, Banks argues that he was entitled to an instruction on punitive damages. The trial court did not address this issue because it dismissed the action based upon lack of evidence of compensatory damages. Since we are remanding this action for a new trial, the trial court must consider the propriety of an instruction on punitive damages based upon the evidence presented at that time.

Note 1. What does it mean when the court calls IIED a “gap-filler”? What do you understand about its purpose and scope so far? Why do you suppose it arose, rather than having changes arise within the other torts such as battery, assault, and false imprisonment?

Note 2. Revisit the facts of Ruiz v. Bertolotti. What interest was the court protecting? What conduct was the court seeking to limit or prevent? Is IIED better understood as a “gap-filler” or a backstop?

Check Your Understanding (2-5)

Question 1. The Kentucky court in Banks describes the tort of IIED as a “gap-filler.” With that in mind, which of the following is most likely to result in a successful IIED action in Kentucky:

Question 2. True or False: Generally, courts allow recovery for humiliation and insults under IIED only when those produce either physical harm or include hateful speech (such as racist epithets or sexist treatment or other discriminatory comments).

Question 3. In Banks v. Fritsch, which of the following facts, if true, weighs most heavily against a finding of false imprisonment? (Or, put another way, which of the following facts would you rely on the most if you were Mr. Fritsch’s attorney?)

Hypothetical: Detained Shoppers

Mr. and Mrs. Bill and Kerry North packed their three children and Mr. North’s mother into their Ford Bronco and set out for the “Giant Liquidation Sale” held that day at Doe’s Department Store. When they arrived, they found the store quite disorganized and the merchandise displaced and picked-over. Nonetheless, their search for bargains began. Two dolly hand trucks caught the eye of Mr. North as he browsed through the store. Noticing that the hand trucks were being “eyed” by another shopper, Mr. North decided to purchase them while they remained available. The trucks each apparently bore two or more price tags, all showing identical prices of $34.99 each. Mrs. North and her mother-in-law took money from Mr. North and purchased the dollies at the cashier’s line. The cashier totaled the prices, added tax, and then discounted the sale by fifty percent. The cashier gave Mrs. North a receipt and Mrs. North left the store with her mother-in-law and locked the dollies in the Bronco. They both returned to the store and Mrs. North gave the receipt and change from the purchase to her husband.

The Norths soon realized that the store management was paging the owner of a Ford Bronco (jeep). Mr. North went to see if there was a problem. He left Mrs. North and his mother behind to watch the children and to continue their shopping. Upon reaching the front of the store, Mr. North saw a police officer and asked whether anyone had hit his jeep. There, the store manager accused him of stealing merchandise. The manager threatened him with arrest if he did not return the goods. Mr. North stated that he did not know to what the manager was referring. The manager repeated the accusation and threat of arrest and Mr. North, finally understanding that the goods in question were the dollies, showed the manager the receipt and change his wife received for the purchase of the goods.

The store manager disregarded the receipt as being “impossible” because the dollies were not for sale, but rather were for use by store employees for transporting merchandise within the store. Mr. North pleaded with the officer not to arrest him as he had indeed purchased the goods and was not a thief. The manager, however continued his accusations of thievery while a number of customers formed small groups around the altercation that had now lasted some twenty minutes.

Attempting further to resolve this embarrassing matter, Mr. North explained that it had been his wife and mother who had purchased the dollies. The manager threatened to arrest them also. Mr. North asked the manager not to involve his wife because she was an outpatient at Forsyth Memorial Hospital and could not handle the aggravation and anxiety. Disregarding this warning, the manager, after spotting Mrs. North, confronted her and accused her of stealing the dollies. Mrs. North protested that she had paid for them, received a receipt, and placed the goods in the jeep. The manager, however, continued his accusations.

Mrs. North located the cashier who had received payment for the dollies. The manager again ignored the proffer of the receipt and the verification by the cashier of the sale. At this time, the officer took the Norths out to their jeep to look at the dollies. By the time they had returned, the Norths had been detained for some seventy-five minutes. Mr. North then asked for the names of the police officer, the store manager, and the cashier. The manager refused to give the names, stating that if the Norths “got the names, then they would be arrested.” The Norths left the store without the requested names. Their last memory of this episode was the manager’s reminder that they could be arrested for larceny anytime within the next year.

Instructions for this hypothetical practice: What intentional torts can Mr. and Mrs. North bring against the department store? Consider them as separate plaintiffs.

Note 1. Why do you think the hypothetical (drawn from an actual case) makes mention of the store’s disorganization, at the start of the facts?

Note 2. The Shopkeeper’s Privilege. Merchants and businesses, in generally, may avail themselves of a defense called the shopkeeper’s privilege that immunizes them against prosecution or litigation for false imprisonment. The hypothetical above comes from a case in North Carolina in which a trial court directed a verdict for the store. However, it was reversed on appeal and a judge found multiple grounds (including false imprisonment and others) on which the plaintiff and his wife could recover. West v. King’s Dept. Store, Inc., (365 S.E.2d 621) (Sup. Ct. N.C. 1988). The case illustrates the variability of the shopkeeper’s privilege as well as the way that it can be defeated by conduct that appears to be malicious or egregious as the court ruled that a jury might find it to be on these facts.

Some jurisdictions have passed statutes to create robust immunity for detaining or questioning or searching a customer based on a reasonable belief that the customer may be shoplifting. The shopkeeper’s privilege also exists at common law, where it grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner and for a reasonable period of time, again only if the employee has reasonable belief that a customer has stolen or is attempting to steal store merchandise. These forms of immunity give merchants latitude to take actions that will sometimes be mistaken and may result in some embarrassment, hassles to innocent customers, or the experience of having one’s person and property invaded or searched. The standard of reasonableness, is, of course, objective: the inquiry is whether it was reasonable for the shopkeeper to believe theft was imminent or underway, not whether the customer is guilty, or innocent (which would be a “subjective” standard, particularized to and provable about this customer). Why has the law used an objective standard for the shopkeeper’s conduct, rather than a subjective standard about the customer?

Note 3. Optimally, the law would strike a balance between the store’s right to protect its wares and the customer’s right to freedom from unreasonable inquiries. Has the law found that balance, in your view, as a normative matter? What changes could tort law make? What effects would flow from any such changes? What other (non-legal) sorts of changes can you imagine being helpful here? Could such changes contribute more effectively to achieving greater balance between customers and stores?

Note 4. Recall the footnote in Villa about the ethnicity of the plaintiff and the mentions of Ms. Ali’s being from Trinidad in Ali v. Margate. Would it have a bearing on your analysis if you knew the demographic identity of the Norths? How about the store manager and cashier? Would it matter to your analysis if the store were located in a wealthy part of town or a poorer one? What inferences would you draw from any of these details? Normatively, should tort law strive to flatten any differences or should its rules retain a focus on factual differences, case to case?

  1. Fritsch’s records show that Banks had missed class seven or eight times from January through April, and an additional ten days during May. However, the school’s attendance records only show Banks absent from the class on three days. In his testimony, Banks admitted that he had skipped the class at least eight times. Fritsch’s records also show that several other students skipped the class more often than Banks. According to Banks, the other students were in his work group, and he was often left to complete projects alone. Fritsch testified that he was aware of this problem, and gave Banks the painting assignments so that Banks might be able to complete his class work.
  2. Following a complaint by Banks’s mother, the school superintendent investigated the incident and suspended Fritsch for 45 days. Fritsch challenged the suspension and sought a hearing. The Kentucky Department of Education appointed a three-member tribunal to hear the matter pursuant to KRS 161.790. The Tribunal conducted a hearing and set aside the suspension.
  3. Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 821 (1992).
  4. Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18–19 (1998).
  5. Id. at 19.
  6. Prosser & Keeton on Torts § 11, at 47 (5th ed.1984) (hereafter Prosser & Keeton).
  7. Id. at 47.
  8. Id. at 48.
  9. Id.
  10. Grayson Variety Store, Inc. v. Shaffer, Ky., 402 S.W.2d 424 (1966); Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky. 126, 69 S.W.2d 5 (1934); Ford Motor Credit Co. v. Gibson, Ky. App., 566 S.W.2d 154 (1977). See also Columbia Sussex Corp., Inc. v. Hay, Ky.App. 627 S.W.2d 270 (1981).
  11. See Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759 (1939); J.J. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359 (1935); and Louisville & Nashville Railroad Co. v. Mason, 199 Ky. 337, 251 S.W. 184 (1923).
  12. 310 Ky. 205, 220 S.W.2d 398 (1949).
  13. Ky., 265 S.W.2d 64 (1954).
  14. Ky. App., 554 S.W.2d 903 (1977).
  15. Daugherty v. Kuhn’s Big K Store, Ky. App., 663 S.W.2d 748, 752 (1983) (quoting Kentucky Commission on Human Rights v. Fraser, Ky., 625 S.W.2d 852, 855 (1981)).
  16. Brewer v. Hillard, Ky. App., 15 S.W.3d 1, 8 (1999).
  17. Graves v. Dairyland Insurance Group, Ky., 538 S.W.2d 42, 45 (1976).
  18. Vitale v. Henchey, Ky. 24 S.W.3d 651, 659 (2000) (citing 6 Am. Jur. 2d., Assault and Battery §§ 144 and 146).
  19. Rigazio v. Archdiocese of Louisville, Ky. App., 853 S.W.2d 295, 299 (1993).
  20. Ky., 671 S.W.2d 247 (1984).
  21. Restatement (Second) of Torts, § 46(1) (1965).
  22. Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2–3 (1990).
  23. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61, 65 (1996).
  24. Rigazio, 853 S.W.2d at 299; Brewer v. Hillard, 15 S.W.3d at 7–8.

Share This Book