Restatement (Second) of Torts
§ 46 Outrageous Conduct Causing Severe Emotional Distress
Summary
Section 46 establishes the tort of intentional infliction of emotional distress (IIED). 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 results, for such bodily harm as well.
The conduct must be truly outrageous—beyond all bounds of decency and utterly intolerable in a civilized community. Mere insults, indignities, threats, annoyances, and petty oppressions are insufficient. The test is whether an average member of the community would exclaim “outrageous!” upon hearing the facts. Courts have found the standard met in cases involving extreme harassment, exploitation of known vulnerabilities, and abuse of power.
The emotional distress must be severe, meaning no reasonable person could be expected to endure it. This is a higher threshold than ordinary emotional upset. Subsection (2) extends liability to situations where the outrageous conduct is directed at a third person and the plaintiff’s distress results from being present and witnessing the conduct.
Key Elements
- 1Extreme and outrageous conduct
- 2Intent to cause severe emotional distress or recklessness as to that result
- 3Actual severe emotional distress suffered by the plaintiff
- 4Conduct must exceed all bounds tolerable in civilized society
- 5Liability extends to third-party bystanders in some circumstances
Practical Application
IIED claims are brought in cases involving severe workplace harassment, debt collection abuse, insurance bad faith, stalking, and exploitation of vulnerable individuals (the elderly, children, or those with known sensitivities). Courts are generally reluctant to find conduct outrageous, making this a difficult tort to prove. It often serves as a backstop when other torts do not apply.
Exam Relevance
The key exam issue is whether the conduct is sufficiently outrageous. Professors often present borderline scenarios to test where students draw the line. Remember: mere rudeness, even extreme rudeness, is insufficient. Look for exploitation of a position of power, targeting known vulnerabilities, or conduct that is repeated and persistent. Also note the severe distress requirement—ordinary upset is not enough.