Intentional Infliction of Emotional Distress / Standards?

Looks like this might be the case, at least in Illinois... anyone know if this is the case elsewhere?

From 444 F.3d 593 (Naeem v. McKesson Drug company):

"The jury also was entitled to consider that the defendants knew that Ms. Naeem was pregnant at the time, and consequently, was particularly susceptible to emotional distress."

Interesting...

Re: Intentional Infliction of Emotional Distress / Standards


The essential elements of an intentional infliction of emotional distress (tort) claim are as follows:

1) the defendant must act intentionally or recklessly;

(2) the defendant's conduct must be extreme and outrageous; and

(3) the conduct must be the cause (4) of severe emotional distress.

With respect to the defendant's conduct, the issue at trial is whether an objectively reasonable person would find the defendant's conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Regardless of whether the defendant's conduct is directed toward a person with a "special condition," the objective reasonable person standard by which we measure the defendant's conduct remains the same. When learning of the facts, would the AVERAGE person exclaim, "outrageous?"

I believe the average person, when learing of facts, takes into consideration the peculiar sensibilities of the alleged victim when considering whether the defendant's conduct is extreme and outrageous. That's all the law requires. However, you're endeavoring to inject a subjective factor into what is supposed to be an objective standard. If the case concerns allegedly outrageous conduct directed toward a pregnant woman, you apparently desire to substitute a different standard that would require the jurors to consider whether the average pregnant woman would exclaim, "outrageous." Why would the average pregnant woman in a civilized community think differently than the average person in a civilized community unless you're PRESUMING that the average pregnant woman is far more sensitive to indignities than the average person?

It appears that you're grasping for a way to discard the objective reasonable person standard and substitute a subjective standard that asks the jury, upon learning the facts, would a person whom we deem to be highly sensitive exclaim, "outrageous." Well, highly sensitive persons would probably exclaim "outrageous" more often than the average person with average sensibilities--and perhaps plaintiffs would win their cases more often. But, that's exactly why an objective reasonable person standard was developed and applied in the first place. We cannot allow people at the extremes (with their own peculiar sensibilities) to dictate what is tolerable or not tolerable in our civilized community. Accordingly, if the AVERAGE person with average sensibilities does not exclaim, "outrageous," then the tort of "outrage" has not been proven.





Again, I believe the average person, when learning of facts, takes into consideration the peculiar sensibilities of the alleged victim when considering whether the defendant's conduct is extreme and outrageous.

In the case you cited, the court would not reduce the damage award for pain and suffering. The court claimed the award was not excessive based on the evidence presented to the jury:

"plaintiff's evidence revealed a course of conduct which threatened her physical health and the health of her fetus, seriously affected the emotional well-being of her family, and caused severe and possibly permanent emotional damage, for which she ultimately sought and has been found to need continuing professional therapy."

Obviously, the average objectively reasonable person is capable of examining the defendant's course of conduct, determining that it threatened the health of the plaintiff's fetus, and finding the defendant's conduct to be outrageous. You don't need to be a reasonable person who is pregnant to figure that out.

That's not the same thing as adopting a "reasonable plaintiff" standard in place of the "reasonable person" standard. A jury is entitled to take into consideration the defendant's knowledge of the plaintiff's peculiar susceptibility to emotional distress because it goes to the intent and outrageousness elements of the tort, not the distress element. Distress, as Debra points out, is still measured by what a reasonable person would be expected to endure.