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Intentional Infliction of Distress in Marital Context - George L. Blum, J.D.

(Below are excerpts from the full article HERE!)

SUMMARY: Recovery of emotional distress damages is permitted by many jurisdictions in cases of intentional torts. Damages for purely psychological injuries are recoverable if a defendant's conduct is gross and wanton, malicious, willful or wanton, indifferent, or reckless and was directed toward the plaintiff. Further, 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. A number of such cases have arisen in the marital context. In McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162, 110 A.L.R. 5th 741 (Wyo. 2001), for example, the court held that a wife would be able to bring a claim for intentional infliction of emotional distress based upon the physical and sexual abuse committed against her by her spouse notwithstanding the marital relationship between the aggressor and the victim. This annotation collects and analyses the state and federal cases in which the courts have discussed one party's action for intentional infliction of emotional distress in the marital setting.

LEAD CASE: McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162, 110 A.L.R. 5th 741 (Wyo. 2001)

As a general matter, some jurisdictions hold that, to support an award of damages, mental anguish or emotional distress need not be accompanied by physical injury. However, in other jurisdictions, recovery for emotional injury is limited to those plaintiffs who sustain a physical injury as a result of a defendant's negligent conduct or where there is a physical impact. A matter traditionally given weight in cases denying the right to maintain an action predicated upon mental disturbance alone is that any other rule would lead to a rapid and intolerable proliferation of litigation to be handled by the courts, or to finely drawn distinctions and inharmonious results. However, some courts have taken the view that the possibility of increased litigation should not deter courts from giving injured persons the full measure of justice to which they are entitled, as freedom from mental distress is considered a protected interest, and the problems of vexatious suits and fictitious claims should not preclude meritorious claims with some guarantee of genuineness in circumstances of case. Further, the mere possibility of fraud, extra litigation, or a measure of speculation is no reason for a court to eschew a measure of its jurisdiction. n2

Recovery of emotional distress damages is permitted in cases of intentional torts. Damages for purely psychological injuries are recoverable if a defendant's conduct is gross and wanton malicious, willful or wanton, indifferent, or reckless and was directed toward the plaintiff. Further, 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, which is the position of the Restatement (Second) of Torts. Thus, for example, where bodily harm is required to recover for mental or emotional disturbances, a claim for the intentional infliction of emotional distress may be established by showing that the defendant's conduct was extreme and outrageous, the defendant acted in an intentional or reckless manner, and the defendant's acts caused the plaintiff severe emotional distress that resulted in bodily harm. The view has been expressed that the less extreme the outrage giving rise to a claim of intentional infliction of emotional distress, the more appropriate it is to require evidence of a physical injury or illness from the emotional distress. n3

To recover for the intentional infliction of emotional distress in jurisdictions not requiring bodily injury, the plaintiff must show that: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress was extreme and severe. Liability for intentional infliction of emotional distress extends to situations in which there is no certainty, but merely a high degree of probability, that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. When the defendant is in a peculiar position to harass the plaintiff and cause emotional distress, his or her conduct will be carefully scrutinized by the courts in determining whether it constitutes intentional infliction of emotional distress. The rule allowing recovery of damages for mental anguish and suffering in cases involving willful, wanton, and malicious acts is especially applicable in cases affecting the liberty, character, reputation, personal security, or domestic relations of the injured party. n4

...

The courts in the following cases held that a spouse or former spouse would be entitled to bring an intentional infliction of emotional distress claim against the other spouse, or that such a claim would be supportable and amenable to proof upon remand, where the distress claim was related to a dispute or uncertainty over the paternity of a child of the marriage.

A former spouse would be entitled to bring a tort action against his former wife, seeking recovery under theories of misrepresentation and infliction of emotional distress, based upon the former wife's misrepresentation of paternity of the children born during the marriage, the court held in G.A.W., III v. D.M.W., 596 N.W.2d 284 (Minn. Ct. App. 1999).

An ex-husband stated sufficient facts upon which reasonable people could conclude that the conduct of his ex-wife and her parents was extreme and outrageous, so as to support his claim of intentional infliction of emotional distress by, inter alia, misrepresenting that the ex-husband was the father of the child to the marriage, the court held in Miller v. Miller, 1998 OK 24, 956 P.2d 887 (Okla. 1998). Pursuant to , the court commented, an action for intentional infliction of emotional distress will lie only where there is extreme and outrageous conduct coupled with severe emotional distress, the court adding that intentional infliction of emotional distress does not provide redress for every invasion of emotional serenity or every anti-social act, and it does not protect mere hurt feelings, no matter how justified.

In Day v. Heller, 264 Neb. 934, 653 N.W.2d 475 (2002), the court held that to allow a former husband's claim for intentional infliction of emotional distress seeking recovery for emotional harm he suffered when the former wife's misrepresentation and concealment of the true biological fatherhood of their purported child born during their marriage threatened to destroy the husband's parent-child relationship with the child was contrary to public policy.

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