AMI 401 Issues—Tort of Outrage—Burden of Proof

If bodily harm is claimed because of defendant's conduct, the appropriate damage instructions should be selected from AMI 2202 through 2209 and inserted in the format of AMI 2201.

Do not use the bracketed paragraph when the case is submitted on interrogatories.

This tort was recognized in M. B. M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Liability can only be established by clear-cut proof, Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), which means preponderance of the evidence, McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). There must be willful and wanton wrongdoing on the part of the tortfeasor. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982). Arkansas does not recognize a tort of negligent infliction of emotional distress, even where the perpetrator is incompetent. Dowty v. Riggs, 2010 Ark. 465.

Recovery under this theory was upheld in Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), where a construction company desecrated a family gravesite; in Hess v. Treece, 286 Ark. 434, 693 S.W. 2d 792 (1985), cert. denied, 475 U.S. 1036, 106 S. Ct. 1245, 89 L. Ed.2d 354 (1986), where defendant, motivated by personal animosity, carried on a two-year campaign to cause plaintiff's discharge as a police officer by having plaintiff watched, and by filing false reports with plaintiff's supervisors; and in Deitsch v. Tillery, 309 Ark. 401, 833 S.W. 2d 760 (1992), where there was intentional concealment of asbestos exposure in a school, and the immunity statute was held to be inapplicable to this intentional tort. See also Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

An action for outrage is particularly appropriate when there has been a violation of a trusted relationship and the damages arise from the position and occupation of the actor. Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467 (outrage claim lies against attorney who makes continued representation of a client conditional upon the client engaging in sex with the attorney). See also McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998) (outrage claim lies against physician who fondles female patients).

Conduct consisting of “mere insults, indignities, threats, annoyances, petty oppression, or other trivialities” will not subject a defendant to liability for outrage. Whether conduct is extreme and outrageous must be determined on a case-by-case basis. Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998); Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).

In Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991), a sharply divided court reversed an award of damages for alleged outrage. Finding no “substantial evidence” to support the verdict below, the court majority stated that it required “clear-cut proof” of the tort. The dissenting justices concluded that there was “substantial evidence” of outrage sufficient to sustain the verdict. This decision suggests that damage awards for outrage may be subject to a de novo standard of appellate review. See also Calvary Christian School, Inc. v. Huffstuttler, 367 Ark. 117, 238 S.W.3d 58 (2006) (decision requiring that the actual occurrence of conduct which “could have been outrageous if it had occurred” be established by proof rather than “attenuated inferences”).

The court reversed an award of damages for outrage in Kiersey v. Jeffrey, 369 Ark. 220, 253 S.W.3d 438 (2007), a custody dispute in which defendant kept the child at some friends' house for several days, on the ground that there was no “clear-cut proof” that plaintiffs suffered severe emotional distress. After reviewing Arkansas cases on this element, the court found the child's embarrassment and brief decline in his school performance, and his mother's “upset” feelings (particularly in view of her failure to seek medical or psychological treatment), insufficient to support the jury's verdict. See also FMC Corp., Inc. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005) (affirming directed verdict on outrage claim; evidence that plaintiffs were unable to sleep, suffered anxiety, lost weight, took antidepressants, and felt “devastated” held insufficient); Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007) (affirming directed verdict on outrage claim on basis that evidence of feelings of depression treated by antidepressant medication and fear of returning to home after defendant allegedly ransacked plaintiff's home and shot his dogs was insufficient to state a claim).

The court takes a narrow view of the tort of outrage in the context of employment relationships. Hollomon v. Keadle, 326 Ark. 168. 931 S.W.2d 413 (1996); City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994) (extensive historical analysis of tort of outrage); Cesena v. Gray, 2009 Ark. App. 143 (threats of supervisors to cause imminent physical harm during working hours insufficient to support outrage claim).