WPI 14.03.02 Outrage—Extreme and Outrageous Conduct—Definition

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.

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).