Intentional Infliction of emotional distress?

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Extension_Cord
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Re: Intentional Infliction of emotional distress?

Postby Extension_Cord » Thu Nov 24, 2011 10:39 pm

ph14 wrote:
Extension_Cord wrote:My book states the ESP only speaks to the proximate cause. Proximate cause isn't a limitation in intentional torts as far I know.


I guess your approach seems to make sense, but it is kind of circular. You're saying that there isn't an "eggshell plaintif" rule for intentional torts because an intentional tortfeasor is already liable for all damages arising from the tort; but they are liable for all damages because of the eggshell plaintiff rule, whether that's what you want to call it or not.

All I know is that courts have used eggshell plaintiff in discussing intentional tort cases, so I think it is proper.


First half yes, second half no. ESP is an exception to proximate cause; since intentional tortfeasors are already liable for unforseeable injuries (no proximate cause) the rule doesn't apply. It wouldn't make sense to apply a proximate cause rule to intentional torts because they aren't subject to that limitation.

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Extension_Cord
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Re: Intentional Infliction of emotional distress?

Postby Extension_Cord » Thu Nov 24, 2011 10:41 pm

ph14 wrote:
Extension_Cord wrote:My book states the ESP only speaks to the proximate cause. Proximate cause isn't a limitation in intentional torts as far I know.


I guess your approach seems to make sense, but it is kind of circular. You're saying that there isn't an "eggshell plaintif" rule for intentional torts because an intentional tortfeasor is already liable for all damages arising from the tort; but they are liable for all damages because of the eggshell plaintiff rule, whether that's what you want to call it or not.

All I know is that courts have used eggshell plaintiff in discussing intentional tort cases, so I think it is proper.


Its basically the same thing, just ones inheret the other is an exception. Same result though.

lawnerd1
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Re: Intentional Infliction of emotional distress?

Postby lawnerd1 » Thu Nov 24, 2011 11:18 pm

Extension_Cord wrote:My book states the ESP only speaks to the proximate cause. Proximate cause isn't a limitation in intentional torts as far I know.


Dude proximate cause has to do with negligence. And earlier you said proximate cause would "ordinarily foreclose unforeseeable injuries." You may want to know that proximate cause has 2 dominant, conflicting theories. The foreseeable risk approach and the direct cause approach. The foreseeablity approach is the one you have mentioned numerous times.

The direct cause approach basically looks at an injury "backwards." Look back from the point of injury and see if there is anything that severs the causal connection between P and D. So even if the injury isn't foreseeable, as long as there is still a causal chain, D is still liable. Look at Andrews' dissent in Palsgraf (which many people believe is better argued than Cardozo's majority opinion. And also look at Friendly's opinion in Kinsman. My professor prefers this approach (and believes foreseeability kind of muddles with duty analysis) when I've read in numerous places that foreseeability is the majority approach so that may be why I've studied both so much.

Now I know that these types of things are highly professor oriented, but you may want to brush up on proximate cause.

Edited to correct a P where there should be a D

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Extension_Cord
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Re: Intentional Infliction of emotional distress?

Postby Extension_Cord » Thu Nov 24, 2011 11:47 pm

lawnerd1 wrote:Dude proximate cause has to do with negligence. And earlier you said proximate cause would "ordinarily foreclose unforeseeable injuries." You may want to know that proximate cause has 2 dominant, conflicting theories. The foreseeable risk approach and the direct cause approach. The foreseeablity approach is the one you have mentioned numerous times.

The direct cause approach basically looks at an injury "backwards." Look back from the point of injury and see if there is anything that severs the causal connection between P and D. So even if the injury isn't foreseeable, as long as there is still a causal chain, D is still liable. Look at Andrews' dissent in Palsgraf (which many people believe is better argued than Cardozo's majority opinion. And also look at Friendly's opinion in Kinsman. My professor prefers this approach (and believes foreseeability kind of muddles with duty analysis) when I've read in numerous places that foreseeability is the majority approach so that may be why I've studied both so much.

Now I know that these types of things are highly professor oriented, but you may want to brush up on proximate cause.

Edited to correct a P where there should be a D


Either your trolling or need to brush up on reading comprehension. You quoted me where i expressly stated "ordinarily." There is only 1 dominate PC test and that has to deal with the foreseeability of injury, but there are different test to find this (Cardozo in palsgraf on the unforeseeable plaintiff and Wagon Mound I&II on the unforeseeable damage). Theres also the one in the restatement and foreseeability of harm is a factor in Andrews. Most schools will only teach the two in palsgraf (foreseeabilty of P's injury in zone of danger & duty to all), but some will tough on Polemis (direct causation) and foreseeability of the injury which is the dominant.

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istara
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Re: Intentional Infliction of emotional distress?

Postby istara » Fri Nov 25, 2011 12:17 am

Just responding to the OP. Restatement Third § 46, cmt i: "The law intervenes only when the plaintiff's emotional harm is severe and when a reasonable person in the same circumstances would suffer severe harm. There is no liability for mental harm suffered by an unusually vulnerable plaintiff, unless the defendant knew of the plaintiff's special vulnerability."

If you're only learning the second Restatement, your rules may be different. I think if anything, however, that the trend seems to be to allow more liability for emotional harms in the Third Restatement than in the Second, so I would not think that the Second would have a more lenient rule.

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Re: Intentional Infliction of emotional distress?

Postby lawnerd1 » Fri Nov 25, 2011 12:51 am

Extension_Cord wrote:
lawnerd1 wrote:Dude proximate cause has to do with negligence. And earlier you said proximate cause would "ordinarily foreclose unforeseeable injuries." You may want to know that proximate cause has 2 dominant, conflicting theories. The foreseeable risk approach and the direct cause approach. The foreseeablity approach is the one you have mentioned numerous times.

The direct cause approach basically looks at an injury "backwards." Look back from the point of injury and see if there is anything that severs the causal connection between P and D. So even if the injury isn't foreseeable, as long as there is still a causal chain, D is still liable. Look at Andrews' dissent in Palsgraf (which many people believe is better argued than Cardozo's majority opinion. And also look at Friendly's opinion in Kinsman. My professor prefers this approach (and believes foreseeability kind of muddles with duty analysis) when I've read in numerous places that foreseeability is the majority approach so that may be why I've studied both so much.

Now I know that these types of things are highly professor oriented, but you may want to brush up on proximate cause.

Edited to correct a P where there should be a D


Either your trolling or need to brush up on reading comprehension. You quoted me where i expressly stated "ordinarily." There is only 1 dominate PC test and that has to deal with the foreseeability of injury, but there are different test to find this (Cardozo in palsgraf on the unforeseeable plaintiff and Wagon Mound I&II on the unforeseeable damage). Theres also the one in the restatement and foreseeability of harm is a factor in Andrews. Most schools will only teach the two in palsgraf (foreseeabilty of P's injury in zone of danger & duty to all), but some will tough on Polemis (direct causation) and foreseeability of the injury which is the dominant.


I can say the same to you regarding your reading comprehension. I only used the quote function to quote one thing.
My book states the ESP only speaks to the proximate cause. Proximate cause isn't a limitation in intentional torts as far I know.

Causation is but one element in the tort of negligence. How could it be a 'limitation' to intentional torts? I then went on a little too in depth about proximate cause because of numerous things you have said regarding foreseeability and proximate cause.

I also find it highly unlikely that I go to the only school in the country that uses the Epstein casebook (Cases and Materials on Torts) that explicitly says there are 2 competing theories to PC. While foreseeability may be applied in more jurisdictions, there are numerous exceptions where direct cause takes over and foreseeability falls short (see below).

I don't feel like getting into an internet argument, but you said earlier you have the Emmanuel outline. P. 153 says Andrew's dissent is roughly similar to direct causation. Then it goes to page p.155 and lists exceptions (for several pages) where foreseeability isn't followed. Egg Shell Plaintiff is the first/second one. However, it does say throughout that foreseeability is the dominant theory. My professor disagrees with this and I am being taught his opinion on torts so I will stop here.

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Extension_Cord
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Re: Intentional Infliction of emotional distress?

Postby Extension_Cord » Fri Nov 25, 2011 1:22 am

No offense brother, but you are tripping me out.
1. When you use quotation marks around something I posted, thats a quote of what I stated.
2. When I said most schools use the palsgraf tests, that doesn't imply you go to the only school that teaches direct causation. My school does too btw. We also covered the Restatement and other foreseeability theories.
3. I don't know where you got the causation is a limitation on intentional torts, like your trollin right?
4. My multiple statements on proximate cause were that there is no PC in intentional torts therefore there is no ESP in intentional torts, but the results are the same. I said this multiple times, but it always the same statement.
5. Andrews is roughly similar to Andrews. He has his own thing going on that has direct causation involved aswell as foreseeability in a lesser degree.
6. I believed I referenced pages 166 and 10, not 153 and 155 and we weren't discussing andrews theory on proximate cause at the time. We were discussing ESP and intentional torts.
7. I don't believe your teacher would tell you direct causation is the dominate form of PC.
8. I don't understand what you mean by ESP being the first/second one.

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$peppercorn
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Re: Intentional Infliction of emotional distress?

Postby $peppercorn » Fri Nov 25, 2011 1:31 am

So for the original question of the thread, markers of extreme and outrageous conduct may include repeated conduct(whereas one incident , though maybe a little extreme, wouldn't give rise to a coa), abuse of authority, and conduct directed to a vulnerable victim(knows they are vulnerable). Not inclusive but the major point is a random occurrence will have to be pretty extreme

lawnerd1
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Re: Intentional Infliction of emotional distress?

Postby lawnerd1 » Fri Nov 25, 2011 11:19 am

Extension_Cord wrote:No offense brother, but you are tripping me out.
1. When you use quotation marks around something I posted, thats a quote of what I stated.
2. When I said most schools use the palsgraf tests, that doesn't imply you go to the only school that teaches direct causation. My school does too btw. We also covered the Restatement and other foreseeability theories.
3. I don't know where you got the causation is a limitation on intentional torts, like your trollin right?
4. My multiple statements on proximate cause were that there is no PC in intentional torts therefore there is no ESP in intentional torts, but the results are the same. I said this multiple times, but it always the same statement.
5. Andrews is roughly similar to Andrews. He has his own thing going on that has direct causation involved aswell as foreseeability in a lesser degree.
6. I believed I referenced pages 166 and 10, not 153 and 155 and we weren't discussing andrews theory on proximate cause at the time. We were discussing ESP and intentional torts.
7. I don't believe your teacher would tell you direct causation is the dominate form of PC.
8. I don't understand what you mean by ESP being the first/second one.


1. ok fair enough
2. I was referencing how you said there is only 1 dominant theory. I then mentioned my casebook that is widely used that does not say which is more dominant. It says there are 2 approaches.
3. No. I got that from a direct quote of you. Reading comprehension, brother.

Extension_Cord wrote:My book states the ESP only speaks to the proximate cause. Proximate cause isn't a limitation in intentional torts as far I know.

4. You're half wrong - there is ESP in intentional torts . Here is the wikipedia, but it puts it in plain english for you. http://en.wikipedia.org/wiki/Eggshell_skull
5&6 go together because that is how I originally mentioned them. On page 153 of Emmanuel's outline (which you referenced earlier so I'm assuming you have it. That is the only reason I even mentioned Emmanuel) it says how Andrews is "roughly similar to direct causation." Yes we were talking about ESP and intentional torts when you mentioned it, but I brought it back up because it was something we could both look at. You mistakenly referenced page 166 when it should have been 155 (unless we have different editions) because that is where ESP is in the causation chapter of Emmanuel. It lists it as 3(a)(i) on page 155. Section 3 is the "Exceptions to the foreseeable-consequences approach" (which makes it seem like direct causation to me).
7. He prefers it for a variety of reasons.
8. See 4 things above. Again, reading comprehension. It was a sentence after exceptions to foreseeability and how I had just referenced page 155.

I'm done with this.

BeenDidThat
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Re: Intentional Infliction of emotional distress?

Postby BeenDidThat » Fri Nov 25, 2011 11:41 am

ph14 wrote:
RelativeEase wrote:The way my professor explained it is IIED requires you to intend the actual injury(as opposed to say battery where you don't have to intend the harm, just the touching). Which makes knowledge of victims mental makeup highly relevant. If you don't know the P is highly sensitive than there is more likely a chance you didn't actually intend the harm.


I think the courts are split over this, some require single intent (just touching), others require dual intent (touching which causes harm).


This is right. I remember specifically an Iowa & Idaho case showing the difference in law.

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gdane
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Re: Intentional Infliction of emotional distress?

Postby gdane » Fri Nov 25, 2011 11:45 am

I'm too lazy right now to read though the past page, but did anyone mention the victim seeking medical attention for a physical illness as a result of the alleged iied?

My professor said a lot of courts require this. He also said the iied has to be really ducked up. He seems to really hate iied.

BeenDidThat
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Re: Intentional Infliction of emotional distress?

Postby BeenDidThat » Sat Nov 26, 2011 9:44 am

gdane wrote:I'm too lazy right now to read though the past page, but did anyone mention the victim seeking medical attention for a physical illness as a result of the alleged iied?

My professor said a lot of courts require this. He also said the iied has to be really ducked up. He seems to really hate iied.


He's not the only one. It's a pretty big expansion of intentional torts. And if you read through some of the cases that hit the appellate courts, it's pretty clear that the "victim" is a whiny wacko.




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