TOP ANALYSIS FOR IIED TORT

Intentional infliction of emotional distress or IIED is commonly tested on final exams. Here’s a simple way to understand it.

Example

Let’s start with an example. At a Super Bowl half time show, pop stars Justin Timberlake and Janet Jackson performed together. At the finale of their live performance Jackson’s costume revealed her naked breast to the television audience. Some parents were outraged and sued the network broadcaster. One basis of their claim was IIED.

The elements of IIED are (1) intent or reckless (2) extreme or outrageous conduct (3) causation and (4) damages.

Intent or Reckless

Starting with intent, neither performer intended to expose Jackson’s breast. It was actually a wardrobe malfunction. But unlike intentional torts such as battery, assault or false imprisonment IIED can be satisfied with either intent or recklessness. So if there was a high probability that the malfunction could have occurred on national television before millions of young children then the network that aired the Super Bowl may satisfy the reckless element for having disregarded that high probability of risk.

Extreme or Outrageous

Next is whether the act was extreme or outrageous. Under this element we weigh several factors. Was the defendant’s conduct “beyond decency”? Was there a known “sensitive or fragile class”? Did a special relationship existed between the parties? Did the conduct occur repeatedly?

The Analysis

Analyzing these factors, one might argue that exposing a woman’s breast and nipple during primetime television is beyond decency. Also professional network broadcasters generally know that the Super Bowl is an American pass time enjoyed by families and young impressionable children who due to their age are members of a fragile class. Broadcasters also share a special relationship with their viewing public to protect them from shocking images.

Then there are counterarguments. The network may defend that the malfunction only occurred once and was quickly covered up or that exposure of a woman’s breast is so common that it is not extreme enough to cross the line of decency.

That sort of analysis of the rule should give you an idea of how to shape the rules to facts when reading a case or responding to an exam question.

Causation and Damage

Lastly, the extreme conduct must cause damage. For IIED claims, the damage is likely not physical but a severe emotional distress. In a case or on an exam you will look for supporting facts such as reoccurring nightmares, sleep deprivation, anxiety or a trip to a therapist.

So that’s IIED! Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing IIED with practice problems.