WPI 14.03 Tort of Outrage

Use this instruction for claims of intentional or reckless infliction of emotional distress. Use this instruction only if the trial court has determined that the conduct has been sufficiently extreme and outrageous as to warrant a factual determination by the jury.

Use this instruction with WPI 14.03.01 (Outrage—Burden of Proof), WPI 14.03.02 (Outrage—Extreme and Outrageous Conduct—Definition), WPI 14.03.03 (Outrage—Intentionally or Recklessly Causes Emotional Distress—Definition), and WPI 14.03.04 (Outrage—Severe Emotional Distress—Definition). The issues instruction from WPI Chapter 20 and the damage instruction from WPI Chapter 30 will have to be modified to fit the case instead of referring to negligence.

Use the bracketed language as applicable.

Use different instructions for a claim of negligent infliction of emotional distress.

This instruction is adapted from Restatement (Second) of Torts § 46 (1965), which the Washington Supreme Court adopted in Grimsby v. Samson, 85 Wn.2d 52, 60, 530 P.2d 291 (1975).

Although the determination whether a course of conduct is sufficiently outrageous ordinarily rests with the jury, Chambers-Castanes v. King County, 100 Wn.2d 275, 289, 669 P.2d 451 (1983), the trial court must initially determine if reasonable minds could differ on whether the conduct is sufficiently extreme and outrageous so as to warrant a factual determination by the jury. Robel v. Roundup Corp., 148 Wn.2d 35, 59 P.3d 611 (2002); Birklid v. Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 (1995); Kirby v. City of Tacoma, 124 Wn.App. 454, 98 P.3d 827 (2004); Phillips v. Hardwick, 29 Wn.App. 382, 387, 628 P.2d 506 (1981); Jackson v. Peoples Federal Credit Union, 25 Wn.App. 81, 82–83, 604 P.2d 1025 (1979); Restatement (Second) of Torts § 46 cmt. h (1965).

Relationship to intentional infliction of emotional distress. The torts of intentional infliction of emotional distress and outrage are identical, although outrage also encompasses reckless conduct. See Kloepfel v. Bokor, 149 Wn.2d 192, 193 n.1, 66 P.3d 630 (2003) (the two causes of action are “synonyms for the same tort”); Robel v. Roundup Corp., 148 Wn.2d at 51 n. 7 (“outrage encompasses causes of action based on reckless and intentional conduct”).

Who can recover. Only the direct recipient of the outrageous conduct, or an immediate family member, can recover for the tort of outrage. Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 738, 565 P.2d 1173 (1977); Restatement (Second) of Torts § 46 (1965). Before an immediate family member of the person to whom the outrageous conduct was directed can recover, however, it must be shown that the family member was present when the outrageous conduct occurred. Reid v. Pierce County, 136 Wn.2d 195, 202–04, 961 P.2d 333 (1998); Lund v. Caple, 100 Wn.2d 739, 742, 675 P.2d 226 (1984).

The class of “immediate family members” who are entitled to recover for the tort of outrage are limited to those who are permitted to bring wrongful death actions pursuant to RCW 4.20.020 (spouses, domestic partners, children, stepchildren, parents, and siblings). See Strickland v. Deaconess Hosp., 47 Wn.App. 262, 268–69, 735 P.2d 74 (1987). Such immediate family members, however, need not be dependent in order to recover. Shoemaker v. St. Joseph Hosp. and Health Care Center, 56 Wn.App. 575, 580, 784 P.2d 562 (1990), overruled on other grounds, Hegel v. McMahon, 136 Wn.2d 122, 135–36, 960 P.2d 424 (1998).