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WPI14.03.02Outrage—Extreme and Outrageous Conduct—Definition

6 WAPRAC WPI 14.03.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 14.03.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part II. Negligence—Risk—Misconduct—Proximate Cause
Chapter 14. Willful and Wanton Misconduct and Tort of Outrage
WPI 14.03.02 Outrage—Extreme and Outrageous Conduct—Definition
Conduct may be considered extreme and outrageous only when the conduct is so extreme in degree and outrageous in character as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.
[In deciding whether the defendant's conduct was extreme and outrageous, you should consider all the evidence bearing on the question and may consider, among others, the following specific factors:
(Insert appropriate factors based on the Comment below).]
NOTE ON USE
Use this instruction with WPI 14.03.01 (Outrage—Burden of Proof) to define what constitutes extreme and outrageous conduct.
Use the bracketed paragraph if providing additional factors would assist the jurors in determining whether conduct was extreme and outrageous.
COMMENT
The first paragraph of this instruction is derived from Restatement (Second) of Torts § 46 comment d (1965), which was quoted with approval in Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975).See also Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998); Birklid v. Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 (1995); Saldivar v. Momah, 145 Wn.App. 365, 389, 186 P.3d 1117 (2008).
Some authorities have described outrageous conduct as conduct “which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’” Browning v. Slenderella Sys., 54 Wn.2d 440, 448, 341 P.2d 859 (1959) (quoting Restatement (Second) of Torts § 46 cmt. d). Nonetheless, the Washington Supreme Court in Reid stated that this was not the test for a tort of outrage claim. Reid v. Pierce County, 136 Wn.2d 195, 201–02, 961 P.2d 333 (1998).
According to Restatement (Second) of Torts § 46 comment e (1965), “[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” See also Birklid v. BoeingCo., 127 Wn.2d at 867; Spurrell v. Bloch, 40 Wn.App. 854, 862–63, 701 P.2d 529 (1985); Phillips v. Hardwick, 29 Wn.App. 382, 388, 628 P.2d 506 (1981).
The following factors are set out in case law: (1) the position occupied by the defendants; (2) whether the plaintiff was particularly susceptible to emotional distress, and if the defendant knew of this fact; (3) whether the defendant's conduct may have been privileged under the circumstances; (4) whether the degree of emotional distress caused by the defendant was severe as opposed to mere annoyance, inconvenience, or normal embarrassment; and (5) whether the actor was aware that there was high probability that his or her conduct would cause severe emotional distress and proceeded in a conscious disregard of it. Jane Doe v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 141 Wn.App. 407, 429–30, 167 P.3d 1193 (2007).
The word “position” as used in (1) above refers to the relationship between the parties. See Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); Jackson v. Peoples Federal Credit Union, 25 Wn.App. 81, 87, 604 P.2d 1025 (1979).
These factors were originally intended for the courts' use in making the initial determination whether a factual issue exists for the jury to decide. However, case law establishes that these factors are “among the factors a jury or a court should consider” in deciding whether the conduct at issue was outrageous and extreme. Reid v. Pierce County,136 Wn.2d 195, 202, 961 P.2d 333 (1998); Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975). The factors should be modified for use in a jury instruction, and should avoid any appearance of a comment on the evidence. For example, the first factor can be more clearly explained to jurors using some of the less vague language found in Restatement (Second) of Torts § 46 comment e (1965). See also Restatement (Second) of Torts § 46 comment g (1965) (indicating that the word “privilege” is broader than traditional privileges such as the attorney-client privilege).
[Current as of September 2018.]
End of Document