To Tort Or Not To Tort?
The first thing that may give rise to the tort is an act or omission which results in a wrong on another. Emotional distress caused by an act or omission can be classified as a wrong in some cases. When the emotional distress is inflicted intentionally, the aggrieved party will be able to seek legal remedies. But in the case of negligent infliction of emotional distress, it becomes very murky. In the case of strangers, it may be argued that there is hardly a duty of care to another random person. Even this is disputable. But when the negligent infliction of emotional distress occurs between people involved in intimate relationships, the question on whether this is sufficient grounds for bringing a tortuous action becomes a very important one.
Establishing negligent infliction of emotional distress as a ground for tort action comes with a myriad of problems. This establishes a duty of care on each partner in the relationship not to inflict emotional distress on the other. Emotional distress is a part and parcel of every intimate relationship. When a father scolds his son, even if it is for his well being, he is causing emotional distress to the son. This can be seen as a part of the wear and tear of every personal relationship. Establishing such a tort would give the son the authority to sue the father for inflicting emotional distress negligently. There is also no measure as to how much is the degree of duty of care required and to what extent will the emotional distress.
This paper examines whether it is feasible to establish negligent infliction of emotional distress as a ground for torts. This scenario will be looked at in the Indian perspective taking the RK Puram DPS Scandal which occurred in Delhi and has striking similarities to another case which has been analyzed elsewhere in this paper, Boyles v Kerr.
The concept of torts, let alone torts due to negligent infliction of emotional distress, is still alien to India. The closest Indian courts have come to infliction of emotional distress is the concept of cruelty. Mental cruelty is seen as sufficient grounds for divorce or judicial separation but the degree of cruelty required to obtain such a remedy is pretty high. This paper also intends to look at whether civil courts in India will be willing to establish a tortuous remedy for infliction of emotional distress, especially when it occurs between husband and wife.
Intentional Infliction Of Emotional Distress
Evolution And Reasons For Establishment
Courts have always tried to reflect the changes in society in their judgments and policies. They have always tried to provide remedies to prevent injustices from happening. Emotional distress was first recognized as a serious injury and one that occurs too often in our society. In order to provide a remedy for those who have been hurt emotionally the courts introduced Intentional Infliction of emotional distress. It is often said that not even the devil knows what lies in the hearts of men. Emotional distress in itself is difficult to prove. In fact, early Texas courts required proof of physical manifestation of emotional distress to make it recoverable. But the courts relaxed this and allowed intentional infliction of emotional distress wherein there was no physical manifestation in St. Elizabeth Hospital v Garrard. In this case, a hospital disposed of the body of a stillborn child without the knowledge or permission of the parents. The court rightly recognized the emotional distress this would have caused the parents and established that no physical manifestation was required to claim for damages for intentional infliction of emotional distress.
In an attempt to define intentional infliction of emotional distress I turn to the case of Twyman v Twyman, wherein the Supreme Court of Texas held that they are “… 1) the defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the emotional distress suffered by the plaintiff was severe.” This definition has led to a lot of criticism stating that it is too narrow and often does not serve the purpose for which it was created.
Drawbacks And Criticism
The intention behind allowing such a ground seems to be good, old fashioned justice. But intentional infliction of emotional distress as a tort has many disadvantages. The main criticism that such a definition of intentional infliction of emotional distress is that the views of the individual have too much of an influence in determining the outcome of such a tort. There is no clarity in defining what an “outrageous” act is. An interesting example of this is seen in Jacobellis v. Ohio, while trying to describing “hard core” pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…” Such a standard and definition gives broad discretionary powers to the judges and members of the jury.
When emotional distress is in itself immeasurable, to ask for proof that such distress was caused with the intention to hurt seems to be asking for a bit too much. It is primarily for this reason that that Justice Cornyn said in Twyman v Twyman, “ ..As for the argument that intentional infliction of emotional distress is a more manageable tort than negligent infliction of emotional distress, while it is no doubt true, it proves far too little. A new cause of action, especially one as significant as intentional infliction of emotional distress, should not be adopted simply because it is not as ill advised as other actions which can be imagined.”
There is hardly any evidence that can be shown in the case of intentional infliction of emotional distress. There are no witnesses that can be called upon to testify as most of the incidents occur in the privacy of the bedroom. There is also criticism that it is based too much on the personal opinions of the judges and members of the jury. Add to all this, the fact that the standards required for an action to be called intentional infliction of emotional distress seem too narrow and exclusionary, and the cause of action itself seems to be defeating the purpose which it was trying to achieve in the first place. To provide compensation to people against whom emotional distress has been inflicted with the intention to hurt them.
Negligent Infliction Of Emotional Distress
Reasons For Establishment
As stated above Intentional infliction of emotional distress had many criticisms. In many cases, there was no ground for claiming damages even though the victim had undergone severe emotional distress because quite often, it was seen that there was no intention to cause emotional distress but it occurs due to negligence of the tort-feasor. However, this did not excuse the tort feasors from exercising proper duty of care to avoid causing emotional distress. Since this does not fall in to the ground of intentional infliction of emotional distress, it was found that there was a need to introduce a new ground which is negligent infliction of emotional distress.
Consider the case where a person suffers severe emotional distress because the airplane he was travelling in nearly crashed. There was no intention by the pilot to cause such an emotional distress. But severe emotional distress was caused and a victim has every right to be compensated for this. In Boyles v Kerr, Boyles along with his friends, videotaped his sexual encounter with Kerr. This was then shown by Boyles to some of his friends but was never distributed to the public. Word of the tape however leaked out and Kerr underwent severe emotional distress as a result of this.
In this case, it is pretty clear that there was no intention on the part of Boyles to inflict emotional distress on Kerr. It could be argued that there was forseeability that there was high probability that exhibiting the tape to others could result in emotional distress for Kerr. In the dissenting opinion of this case, Justice Doggett states the following regarding forseeability “… In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of all these factors, foreseeability of the risk is “the foremost and dominant consideration…” It could also be argued that as Kerr’s boyfriend there was a duty of care on the part of Boyles not to inflict emotional distress on her. This duty increased manifold when he recorded the sexual encounter without the permission of Kerr. Therefore, Boyles had a duty of care that the tape he so obtained should not cause any harm to Kerr. This shows that the infliction of emotional distress on Kerr was because of the negligence of Boyles. But the courts were unwilling to consider it as negligent infliction of emotional distress.
Courts have always tried to keep up with changing social, political, economic and technological changes in society. In not accepting negligent infliction of emotional distress as a tort, the dissenting opinion lambasted the majority “…What has happened to this court’s multiple pronouncements that the common law concept of duty is not frozen or stagnant, but must change to reflect current social conditions and technological advances?” But the establishment of negligent infliction of emotional distress as a ground has also come under a lot of criticism.
Drawbacks And Criticism
Establishing negligent infliction of emotional distress as a cause of action for filing a tort case has met with several criticisms. In Boyles v Kerr, the majority opinion held that “…An independent cause of action for negligent infliction of emotional distress would encompass conduct far less outrageous than that involved here, and such a broad tort is not necessary to allow compensation in a truly egregious case such as this..” Thus negligent infliction of emotional distress was seen to be too broad and could bring in many cases of non-severe emotional distress as well under its purview letting loose a floodgate of litigation. This seemed to be one of the major reasons why the majority opinion in Boyles refused to admit negligent infliction of emotional distress as a ground.
There was also concern in the concurring opinion of Justice Gonzalez in Boyles v Kerr, that establishing negligent infliction of emotional distress could open up the home insurance of house owners in Texas, for recovery of any damages. Damages resulting from acts of negligence can be claimed against the house insurance of home owners in Texas and this could prove to be a further incentive for increased litigation once this is opened as a cause of action for filing a tort case. There ass also the fear of limitless liability if such a ground was established
It can be seen that negligent infliction of emotional distress has its fair share of criticisms. It seems to open up the floodgates of litigation and courts are highly divided as to their effectiveness.
Limiting Negligent Infliction Of Emotional Distress
When it was first introduced, negligent infliction of emotional distress was seen as proof to how much the courts adapt to changing society and technology. However, the potential of limitless liability, the fear that negligent infliction could open up the floodgates of litigation and that just about anyone could be held to have a duty of care not to inflict emotional distress on a third party led the same courts that had embraced this ground, to try and reign in the situation before things went out of control. This led to some novel solutions, some not so novel solutions and some creative verbal jugglery.
Some courts have introduced the concept of grossly negligent infliction of emotional distress to limit the kind of damage that can be sued under this independent ground. Many states which introduced negligent infliction of emotional distress has such as the State of California have ended up abolishing it. State such as Florida have tried to limit the ground by introducing the “Impact rule”. The state of Arizona and some other States have introduced “the bodily injury rule” to limit this ground and some states have come up with some not so novel solutions to limit, such as the “same island rule” by the State of Hawaii. After establishing negligent infliction of emotional distress as an independent ground, the court realized the limitless liability that could be claimed under this new ground in Kelley v. Kokua Sales and Supply, Ltd.. The court established the “proximity rule” which essentially said that there must be physical proximity between the plaintiff and the accident. In Kelly, the father of one of the victims of an accident was informed of the accident by telephone from Hawaii, while he was in California. He suffered a heart attack and died. His estate sued the owners and driver of the truck that caused the accident but the court framed the “proximity rule” which disallowed this claim as if to say that the emotional distress would have been more if the father had heard of it when he was in Hawaii than when he was in California.
In Boyles v Kerr, the courts refused to accept negligent infliction of emotional distress as an independent cause of action stating many of the aforementioned reasons. The court claimed that sufficient grounds are present such as intentional infliction of emotional distress, intentional invasion of privacy, which will provide relief to Kerr and no separate ground need be created for this case. All this goes to illustrate the confusion reigning over the courts as to how to deal with negligent infliction of emotional distress.
Negligent infliction of emotional distress does seem to be very feasible as evident from the struggle of most courts to try and make it into a workable model. The contentions raised by the court in Boyles v Kerr seems to be valid. The restatement of the intentional infliction of emotional distress takes care of intentional or reckless behavior. As the court explained in Burk Royalty Co. v. Walls, ‘ “reckless disregard” and “gross negligence” are synonymous terms. Therefore intentional infliction of emotional distress can be argued to contain grossly negligent infliction of emotional distress as well. This would also automatically imply that damages can be recovered against the insurance of the home which would cover actions of gross negligence. Thus it appears that the ground of intentional infliction of emotional distress seems to be sufficient to protect against infliction of emotional distress without opening the doors too wide for a flood of litigation. In Boyles v Kerr, “…the majority declares with vigor that “judicial resources” would be “strained,” 36 Tex.Sup.Ct.J. at 233, with the insignificant, the trivial, with other mere “intimate” affairs of the heart. 855”. Therefore the restatement of intentional infliction of emotional distress seems to address the fears of containing the floodgates of litigation.
All these issues also need to be looked from the perspective of intimate relationships. Can a person expect privacy from his or her spouse? Does a person have a higher duty to not to inflict emotional distress on his spouse than against an ordinary passerby? This was addressed in Twyman v Twyman, The court held that “ Married couples share an intensely personal and intimate relationship. When discord arises, it is inevitable that the parties will suffer emotional distress, often severe.” Therefore the question whether infliction of emotional distress is in itself actionable in the case of intimate relationships seems to be a valuable question. While it is true that emotional distress is a part and parcel of married life, I respectfully disagree with the court. Just because there is bound to be emotional distress in a marriage, it should not absolve a spouse from an increased duty of care on each spouse to ensure that there is no infliction of severe emotional distress. Such a duty is required of a partner in a marriage to ensure the smooth functioning of a family which is the foundation block of society. Here again, the restatement of intentional infliction of emotional distress can sufficiently addresses the problem.
On looking at this in an Indian context, the MMS scandal in Delhi Public School, RK Puram that rocked the nations seems has striking similarities to the case of Boyles v Kerr. But in India, it is inconceivable that a girl would bring a lawsuit against her ex boyfriend for inflicting emotional distress or invading her privacy. The publicity that such a case will bring is sufficient to silence any girl or woman from coming out and suing the boy. Also because of the pendency of cases, it would be some time before the girl would get justice, meanwhile her entire future would be ruined due to unnecessarily long proceedings which would uncover the most intimate details. In reality, this took the form of a criminal case and the boy who made the video tape as well as the CEO of bazee.com, the site where this clip was auctioned, was arrested.
Opening such a ground for litigation in India may not yield many positive results, atleast in the area of intimate relationships, for the aforementioned reasons. While it may not be used much immediately, establishing a ground for infliction of emotional distress could help empower women further and help them seek justice against the infliction of emotional distress.
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