Friday, May 30, 2014

Restatement of Intentional Torts: IIED

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  ksimons@bu.edu and Ellen at Ellen.Pryor@untsystem.edu.  The entire draft, comments and all, is here.

§ 104. Intentional (or Reckless) Infliction of Emotional Harm

An actor who by extreme and outrageous conduct intentionally or

recklessly causes severe emotional harm to another is subject to liability for

that emotional harm and, if the emotional harm causes bodily harm, also for

the bodily harm.

--CJR

http://lawprofessors.typepad.com/tortsprof/2014/05/restatement-of-intentional-torts-iied.html

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Comments

1. Does "intentional or reckless" modify "extreme and outrageous conduct" or the "cause harm". There are problems with both approaches. If one doesn't know it is extreme or outrageous conduct should it be actionable? If one doesn't intent to or expect it to cause severe emotional harm should it be actionable?
2. Why is there no requirement that a reasonable person would have suffered severe emotional harm, particularly if the conduct was intended but the emotional harm was not?
3. Does bodily harm extent to emotionally induced self-mutilation or suicide, or just to things like shock induced heart attacks or psychosomatic injury from emotional distress.
4. Given the vagueness of extreme and outrageous conduct, should there be express safe harbor provisions for First Amendment or other legally justified conduct, or for consent or assumption of risk.

Posted by: ohwilleke | Jun 3, 2014 3:08:30 PM

I don't understand why we would keep the notion of "recklessness" in the new restatement. It has never been clear what it means nor why it would be needed. If the idea is to create a tort not based on the principle of intent, then we can do that, but to say that you can satisfy the element of intent by showing something other than intent has never made any sense to me. And what is recklessness anyway? Is it the same as gross negligence? If so, how is that different from negligence. Negligence is negligence, whether gross or mild. If I had a vote, I would vote to eliminate the reference to recklessness entirely.

Posted by: Prof. Alberto Bernabe | Jun 4, 2014 11:28:45 AM

This section 104 of the draft Restatement of Intentional Torts is merely a cross-reference to section 46 of the Restatement Third of Torts: Liability for Physical and Emotional Harm, which has already been published, and is available on West and Hein. Most of the questions raised by the commentators are addressed in the comments to § 46.
The question how to define recklessness is one that has indeed proven difficult for courts. Section 2 of the Restatement Third of Torts: Liability for Physical and Emotional Harm, previously published, defines it as follows:

A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation, and
(b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk.

Posted by: Ken Simons | Jun 6, 2014 2:29:22 PM

Normally, recklessness means knowing disregard for a known risk, but without an actual intent to harm someone.

Posted by: ohwilleke | Jun 6, 2014 4:44:19 PM

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