Larissa S. FORD, Respondent, v. Arthur C. HUTSON, Appellant
No. 21418
Supreme Court of South Carolina
276 S.C. 157; 276 S.E.2d 776
March 25, 1981
OPINION: A jury awarded plaintiff Larissa S. Ford $ 1,500 actual
damages plus $ 100,000 punitive damages against defendant Arthur C. Hutson for
intentional infliction of emotional distress. The judge granted a new
trial unless the plaintiff remit $ 65,000 of the punitive damages award.
Plaintiff remitted. Defendant has appealed.
This court must determine initially whether South Carolina recognizes a cause
of action for intentional infliction of emotional distress. Assuming we
allow this comparatively new, independent tort, we must then decide whether a
recovery was warranted under the facts involved.
I. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IN SOUTH CAROLINA
Recovery for mental or emotional disturbance based upon violation of a legal
right for which other damages are recoverable has long been accepted in
this state. Perhaps the most common example occurs when damages for mental
suffering are allowed in a personal physical injury suit. See Mack v. South
Bound R. Co., 52 S.C. 323, 29 S.E. 905 (1898). Also, compensation for
mental shock and suffering, wounded feelings, grief and sorrow has beyond
question been allowed in wrongful death actions under Lord Campbell's Act. Mishoe
v. Atlantic Coast R. Co., 186 S.C. 402, 197 S.E. 97 (1938). However, the
concept of bringing an action seeking damages for mental and emotional injury
outside the scope of some traditionally recognized tort (e.g. assault
battery, false imprisonment) is a relatively novel one in this country. See
William L. Prosser, Law of Torts (4th ed. 1971). Professor Prosser
states the following at § 12:
"It has gradually become recognized that there is no magic inherent in the
name given to a tort, . . . and that the infliction of mental injury may
be a cause of action in itself. Its limits are as yet ill defined, but it has
been extended to its greatest length in the case of intentional acts of a
flagrant character, whose enormity adds special weight to the plaintiff's
claim, and is in itself an important guarantee that the mental disturbance
which follows is serious and not feigned."
Numerous jurisdictions today have recognized that infliction of mental
suffering is, in fact, a cause of action in itself. This new tort is commonly
denominated, appropriately, "infliction of emotional distress," or
"outrage." While this legal theory has not been consistently accepted
among the states, it has experienced a dynamic development. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 In M.B.M. Company, Inc. v. Counce, Ark., 596 S.W. (2d) 681, Chief
Justice Fogleman includes an interesting discussion of the development of the
law in this field.
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"Acceptance of the tort of outrage has undergone a remarkable evolutionary
process in the United States in a relatively short time. Section 46 of the
Restatement of Torts in its original form stated flatly there was no liability
for the intentional infliction of emotional distress, or for bodily harm
resulting from it, except in cases of assault and of special liability of
carriers covered in section 48. This position was reversed in the 1948
supplement and the comments were completely rewritten Restatement (Second) of
Torts § 46 at 21 (Tent. Draft No. 1, 1957). The Restatement and courts
supporting it have since drastically changed their position from denial of
liability for intentionally inflicting emotional distress to the allowance of
liability against one who intentionally caused emotional distress without
privilege to do so, and later to the present rule which requires that the
conduct be extreme and outrageous before [**778] liability will
attach. Pakos v. Clark, 253 Or. 113, 453 P. (2d) 682 (1969)." Contreras
v. Crown Zellerbach Corp., 88 Wash. (2d) 735, 565 P. (2d) 1173 (1977).
In Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103
S.E. (2d) 265 (1958), we affirmed recovery of damages for shock, fright, and
emotional upset despite the absence of any physical impact between the
plaintiff and defendant. In that case, the plaintiff alleged that his skin rash
resulted from his emotional distress proximately caused when the truck of
defendant collided with plaintiff's house.
In a series of more recent cases, this court has recognized, either
expressly or impliedly, that one's wilful, malicious conduct proximately
causing another's emotional distress may be actionable. Turner v. ABC
Jalousie Co. of N.C., 251 S.C. 92, 160 S.E. (2d) 528 (1968); Rhodes v.
Security Finance Corp. of Landrum, 268 S.C. 300, 233 S.E. (2d) 105 (1977); Bellamy
v. General Motors Acceptance Corp., 269 S.C. 578, 239 S.E. (2d) 73 (1977); Hudson
v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E. (2d) 812 (1979). For
example, where plaintiff alleged that she suffered a nervous breakdown after
defendant had used vile, profane, and abusive language, we held that a cause of
action had been stated. Turner, supra. However, we have been careful to
distinguish between legally stating a cause of action and successfully proving
the claim. Thus, we have said: "[T]here is no liability for emotional
distress without a showing that the distress inflicted is extreme or severe . .
. [and no recovery is justified where] [t]here is no showing that [the
defendant's conduct was] unreasonable or abusive, nor that [plaintiff's]
emotional upset was other than transient and trivial." Rhodes, supra.
"[However, conduct which] demonstrated a callous disregard for
[plaintiff's] well-being [and was] clearly unreasonable and abusive [may be
actionable]. Bellamy, supra.
In our latest opinion in this area, we held the following:
"In order to prevail in a tortious action in which the sole damages alleged
are those of mental anguish, plaintiff must show that the conduct on the part
of defendant was extreme and outrageous causing distress that is of an extreme
or severe nature." Hudson, supra.
In support of our decision in Hudson dismissing the action, we cited
from the Restatement (Second) of Torts (1965), § 46.
Inasmuch as this court has already implicitly indicated that conduct intended
to invade freedom from severe emotional distress is tortious, we now lend
express recognition to this proposition. We adopt the rule of liability stated
in § 46 of the Restatement (Second) of Torts relating to intentional
infliction of emotional distress: "§ 46. Outrageous Conduct Causing Severe
Emotional Distress.
(1) 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."
We cite with approval the language found in Vicnire v. Ford Motor Co.,
401 A. (2d) 148 (Me. 1979).
"Specifically, in order to recover for the intentional infliction of emotional
distress, a plaintiff must establish that (1) the defendant
intentionally or recklessly inflicted severe emotional distress or was certain
or substantially certain that such distress would result from his conduct, Restatement
(Second) of Torts § 46, Comment i; (2) the conduct was so 'extreme
and outrageous' as to exceed 'all possible bounds of decency' and must be
regarded as 'atrocious, and utterly intolerable in a civilized community,' Restatement
(Second) of Torts § 46, Comment d; (3) the actions of the defendant
caused the plaintiff's emotional distress; and (4) the emotional
distress suffered by the plaintiff was 'severe' so that 'no reasonable man
could be expected to endure it.' Restatement (Second) of Torts § 46,
Comment j. Although 'severe' emotional distress is usually manifested by
'shock, illness or other bodily harm,' such objective symptomatology is
not an absolute prerequisite for recovery of damages for intentional . . .
infliction of emotional distress. Restatement (Second) of Torts §
46, Comment k."
II. APPLICATION TO PRESENT FACTS
In 1971, plaintiff, owner of a Charleston real estate agency, sold a house
constructed by her husband to defendant, a physician recently employed by the
Medical University of South Carolina. Prior to actual purchase, defendant
required an appraisal of the house, sent a known builder to inspect it, and
directed his accountant to determine the reputation of plaintiff as a realtor.
Thereafter, during approximately six to eighteen months, defendant began
experiencing problems with his new house, including a faulty air conditioning
unit, rotting rear deck, and sagging roof line. The cause and liability for
these defects were in dispute.
Between 1972 and 1974, defendant personally confronted plaintiff and rudely
quarrelled about the house and about the responsibility of plaintiff to make
the necessary repairs. The number and manner of these incidents is disputed.
Plaintiff contends that defendant orally accosted her with insulting and/or
profane remarks on no less than seven different occasions. Defendant
admitted to two such occasions but contradicted plaintiff's version of the
circumstances. As to scenes at plaintiff's home, she testified that while she
was discussing business matters with a friend, the defendant, who lived
next door, burst in unannounced and begin cursing her in a loud, vicious
manner. She described one incident as follows:
"A. Mrs. Chakeris and I were sitting in my kitchen drinking coffee,
discussing her house. Again, Dr. Hutson, unannounced, without knocking, threw
the door open and walked in and started in on me with profanities. He says to
me, this Goddam house, it's going to fall apart and it is going to deteriorate,
and I said, Dr. Hutson, I'll be glad even at this stage to buy the house back
from you. At that point Mrs. Chakeris got up and says, well, I got to run."
Mrs. Chakeris similarly described the incident by testifying ". . . it
seemed very abrupt and very rude and very -- it just seemed outrageous
that he would run into the house and start cussing someone out."
As to the other occasion at plaintiff's home, while repairs were being made,
she said:
"A. Okay. Evidently something went on until Dr. Hutson came in again
without knocking. He told me that I'm going to do that work the way he wants it
or I not going to do it at all, and he is at that point -- at the point to kick
everybody's ass and he wouldn't blink an eye of getting a two by four and
knocking all our heads -- bash all our heads in. I will not let any men working
under those conditions. I will not expect any men to work under those conditions,
and so I ask the men to pack up their tools and leave, and I told Dr. Hutson
that my husband is going to take it further up with him. . . ."
In a separate incident, at Zinn's Delicatessen, the defendant's conduct towards
the plaintiff is described by the plaintiff as follows:
"Dr. Hutson start yelling on top of his lungs, when you gonna fix my
Goddamn house, it's falling down. Now what are you going to do about it. I may
have grabbed -- I believe Mrs. Goldberg grabbed my husband's hand because my
husband just stiffened up, and I said to him, Dr. Hutson, I have an office from
nine to five. Any complaints you have I will very much like to have them at my
office. I say, furthermore if you are not satisfied in any way with the house I
will be very happy -- stop by my office and we will make arrangements for
me to give you your money back and give you enough time for you to move out of
the house and let me own the house."
Witness Mrs. Goldberg (with the plaintiff at the delicatessen)
corroborated plaintiff's testimony by saying:
"We began to take our coats off and as we did he yelled very loudly, when
are you going to fix my GD house."
She described his conduct as ". . . very cruel, very vicious."
It is uncontradicted that plaintiff, even after building defects
surfaced, offered to repurchase the house, but that defendant never pursued the
offer of repurchase.
In November 1974, defendant sued Ford Construction, Ltd., and the plaintiff,
individually, for damages arising out of his housing problems. The suit against
plaintiff individually, was dismissed for lack of evidence.
Some time after 1972, plaintiff began experiencing depressive symptoms and her
real estate business became less profitable. Shortly after the restaurant episode,
she was examined by her physician and diagnosed to be suffering from headaches
and a spastic colon. There was testimony that plaintiff, once an energetic,
attractive person, no longer cared about herself or her business and had
deteriorated physically and emotionally.
Late in 1976, plaintiff suffered an attack of shaking, nausea, cramps, and
hysteria. She was hospitalized soon thereafter for several days and was
diagnosed to be suffering from depression. In addition to continued suffering
from headaches and spastic colon, she has experienced knotting of the
intestinal tract, severe bouts of nausea, stiffness and numbness.
During that same time, plaintiff commenced this action against defendant for
intentional infliction of emotional distress; defendant counterclaimed for
fraud and deceit. The case was tried by jury in 1978. Plaintiff recovered;
defendant did not.
Defendant, on appeal, argues in general the following:
(1) his conduct was not intentional;
(2) his conduct was not extreme or outrageous;
(3) plaintiff's injuries were not severe, were not evidenced by any physical
manifestations, and did not closely follow the alleged wrongdoing; and
(4) plaintiff's emotional distress was not proximately caused
by his conduct -- specifically, that attempted proof was based upon an improper
hypothetical question and expert opinion.
Applying the standards approved hereinabove, we dismiss the contentions of the
defendant. When evidence is in conflict and susceptible of more than one
reasonable inference, it is the province of the jury to make a factual
determination. We cannot say, as a matter of law, that the trial judge erred in
submitting the issues to the jury. The evidence is legally sufficient to
support the verdict. It is true, as argued by the defendant, that the business
relation of the parties is a significant factor to be considered. A business
relationship may sometimes justify one's conduct and make that conduct
excusable or at least less culpable, but it is at most a factor to be
considered and weighed by the jury. Conduct growing out of a business
relationship may be so outrageous and shocking as to be actionable. The
evidence is susceptible of the inference that the conduct complained of herein
was not a mere complaint by a dissatisfied homeowner, but was instead a
continuing pattern of highly questionable conduct over a period of almost two
years.
Moreover, we do not adhere to the position advanced by defendant that physical
illness or some other non-mental damage is essential to recovery. At the
same instance, where physical harm is lacking, the courts should look initially
for more in the way of extreme outrage as an assurance that the mental
disturbance claimed is not fictitious. See Prosser, Law of Torts, supra.
Neither do we think the hypothetical question and responsive expert opinion
relating to causation between defendant's conduct and plaintiff's injuries were
improperly admitted or insufficient evidence on this issue. Plaintiff's
psychiatrist first treated her in his office, at which time plaintiff
related relevant portions of her background. Additionally, this
psychiatrist observed her on eleven subsequent occasions during her
hospitalization. Defendant argues that plaintiff deleted from the background
history she presented to the psychiatrist numerous incidents that were
necessary material facts for an opinion. These additional factors were brought
out on cross-examination and the psychiatrist testified that they could be significiant
factors in determining the cause of one's depression. On redirect, however, the
psychiatrist stated that his opinion remained unchanged. Moreover, no evidence
was produced suggesting that plaintiff had ever experienced any mental
anxiety whatsoever prior to her encounters with defendant. The fact that
defendant produced three expert physicians (each being his colleague at the
medical university and none of whom had ever seen plaintiff) who testified
contrary to plaintiff's psychiatrist is a matter to be weighed by the jury and
does not automatically negate the adverse opinion. We are satisfied the
hypothetical question was based upon sufficient material facts necessary to
form an intelligent opinion, Young v. Tide Craft, Inc., 270 S.C. 453,
242 S.E. (2d) 671 (1978), and that there was sufficient evidence from which the
jury could find most probable causation. Padgett, supra.
Defendant also argues that the two-year statute of limitation period in §
15-3-550, Code of Laws of South Carolina (1976), should apply and bar
this suit since the action is akin to slander and assault and since the last
confrontation occurred more than two years before the suit was filed. Because
we hold today that this tort is one independent of others, and not merely an
outgrowth of another traditional tort, the six-year limitation period of §
15-3-530 (5) is controlling and the limitation had not run.
We have reviewed all remaining contentions of defendant and dismiss them as
meritless, pursuant to Rule 23, because no error of law appears and no matter
of precedent is involved.
For the foregoing reasons, the judgment of the trial court is
Affirmed.