Intentional Infliction of Emotional Distress (“IIED”)/“Outrage”

  1. Introduction

    The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort of intentional infliction of emotional distress or outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

  2. Elements

    1) Deliberate or reckless infliction of mental suffering;

    2) Outrageous conduct;

    3) The conduct caused the emotional distress; and

    4) The distress was severe.

    5) The conduct must be so outrageous in character and so extreme in degree that it is considered atrocious, and utterly intolerable in a civilized community.1

  3. Cases

    1. Liberti v. Walt Disney World Co., 912 F. Supp. 1494 (M.D. Fla. 1995)

      • Procedural Posture: On defendants’ motion for summary judgment arising from allegations that defendants failed to appropriately respond to defendants' secret videotaping and dissemination of videos of plaintiffs taken in Disney facilities while they were changing, without the plaintiffs’ knowledge or consent.

      • Law: Intentional infliction of emotional distress; Invasion of privacy; Unlawful interception of oral communications; Negligent supervision of employees; Negligent retention of employees; Sexual harassment

      • Facts: Plaintiffs were female employees of Walt Disney who changed their clothes to costumes/uniforms in Disney’s facilities. Disney had drilled holes in the walls to help combat previous thefts, and one Disney employee devised a system to try to use those holes to videotape and tape-record the plaintiffs without their knowledge and consent. Disney knew about the misconduct three months before putting a stop to its employee’s bad behavior, and a jury could find that its lack of action “crossed the bounds of decency and could lead the average member of the community to exclaim ‘outrageous!’”2

      • Outcome: The court partially denied and partially granted summary judgment for the defendants.

      • Special Notes: The court left open the question of whether Disney was entitled to use the female employees (“Kids”) as bait: “However, this court is not prepared to rule on the record before it that the Defendant did not exceed the bounds of propriety in using the female Kids as ‘bait’ in the sting operation without their prior knowledge or consent, particularly in consideration of the contractual agreement between several of the Plaintiffs and the Defendant regarding a secure dressing environment. Defendant has not established that the use of the female Kids as bait to catch the peeping tom was a ‘permissible way’ of pursuing its legal rights of investigation.”3

    2. Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985)

      • Procedural Posture: Certified question before the Florida Supreme Court because of conflicting decisions by two lower courts regarding the issue

      • Law: Intentional infliction of emotional distress

      • Facts: Defendant McCarson was issued a group insurance policy by Metropolitan Life, which covered employees of his paint and body shop, including his wife. McCarson’s wife soon became incapacitated by Alzheimer’s, and the insurer stopped payment of benefits, claiming that the condition had been preexisting and that coverage was void because McCarson had failed to properly disclose it upon applying for the policy. The insurer discontinued McCarson’s 24-hour nursing care after requesting (and not receiving) proof of ineligibility for Medicare, and after Mrs. McCarson died of a heart attack, her surviving husband sued for wrongful death on the theory that insurer had failed to fulfill the contract terms and had intentionally inflicted emotional distress on Mrs. McCarson, causing her death.

      • Outcome: The court partly affirmed and partly quashed the lower court opinion and remanding to trial court for entry of judgment in favor of insurer. First, no intentional infliction of emotional distress claim could lie because the insurer was not acting “outrageously”—although the insurer’s demand and the “withholding of further benefits had tragic results, and although we must assume from the jury’s verdict that it found Metropolitan was in reckless disregard of the potential for such tragedy, Metropolitan did no more than assert legal rights in a permissible way,” making its actions “privileged.”4 Thus, the court quashed the portion of the lower court decision holding that McCarson’s wife had a cause of action for IIED that could support her surviving husband’s suit for wrongful death.5

      • Special Notes: The court also held that McCarson’s wife was “at best an incidental third-party beneficiary of the contract,” and, therefore, could not have maintained cause of action either for breach of contract of for bad faith dealing on the contract.”6

    3. Armstrong v. H&C Commc’n, Inc., 575 So. 2d 280 (Fla. Dist. Ct. App. 1991)

      • Procedural Posture: Appeal from lower court order dismissing complaint for tort action arising from broadcast of information regarding the discovery of plaintiffs’ child’s remains.

      • Law: Outrage7; Invasion of privacy

      • Facts: Plaintiffs were the parents of an abducted child, whose remains were found after several months. The defendant news channel obtained video footage of the decedent child’s skull and later broadcast that footage without reviewing or editing the film, and without first notifying plaintiffs, who were watching the news at the time of the segment. The plaintiffs sued for damages, and the defendants admitted that the close-up of the skull was not newsworthy, was wrongfully aired, and would not have been aired had the footage been properly reviewed beforehand.

      • Outcome: The court affirmed the dismissal of the invasion of privacy claim, but reversed and reinstated plaintiff’s claim for outrage. The court explained that the independent tort of outrage is recognized in Florida, and that it had “no difficulty in concluding that reasonable persons in the community could find that the alleged conduct of Channel 2 was outrageous in character and exceeded the bounds of decency so as to be intolerable in a civilized community. An average member of the community might well exclaim, ‘Outrageous!’”8

      • Special Notes: The court affirmed dismissal of the invasion of privacy claim because the discovery of the child’s remains, and their possession by the police were “legitimate matters of public concern.”9

    4. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299 (M.D. Fla. 2010)

      • Procedural Posture: Following entry of default judgment for plaintiff against the company, the plaintiff moved for a default final judgment of liability

      • Law: Defamation by implication; Copyright Infringement; Fla. Stat. § 540.08; Invasion of Privacy (misappropriation); Intentional infliction of emotional distress

      • Facts: Plaintiff, an amateur photographer, sued defendants for damages arising from company’s unauthorized use of her self-portrait from age fourteen on packaging of a pornographic movie. The company claimed they got the photo from an authorized website. The plaintiff and the defendant company engaged in several heated email exchanges after which the company discontinued the use of the photograph, but plaintiff claimed that she was entitled to damages including a lost licensing fee, the company’s profits, and punitive damages arising from the emotional distress the incident caused.

      • Outcome: The court granted plaintiff’s motion for a default final judgment of liability against the company and awarded plaintiff damages of $129,173.20 with interest for her damages. The amount was based on her copyright infringement fees, disgorgement of defendant’s profits, harm to her professional reputation, and statutory misappropriation. The court denied her request for punitive damages because she failed to show the defendant had acted willfully, and it also denied her request for emotional distress damages because it found that she failed to put forth a claim of IIED where there was no evidence that the defendants had knowingly acted “outrageously”: “[T]he defendants’ conduct, in its totality, was morally wrong and tortious. However, the misconduct still does not ‘go beyond all bounds of decency and . . . [cause] an average member of the community . . . to exclaim, ‘Outrageous.’”10

      • Special Notes: The bulk of the damages ($100,000) were awarded to plaintiff for the harm to her professional reputation, since she alleged that the video had caused her to lose potential jobs, etc.

  4. Practice Pointers

    Florida has adopted the Restatement’s view “that the other [person] is peculiarly susceptible to emotional distress,” the actor’s “conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge.”11 Thus, a WMC victim’s personal characteristics should be accounted for in analyzing the viability of his or her IIED claim.

  1. Thomas v. Hosp. Bd. of Dir. of Lee County, 41 So. 3d 246, 256 (Fla. Dist. Ct. App. 2010). 

  2. Liberti v. Walt Disney World Co., 912 F. Supp. 1494, 1507-08 (M.D. Fla. 1995) (denying summary judgment to defendants on their assertion of protection under the doctrine of respondeat superior). 

  3. Id. at 1507. 

  4. Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985). 

  5. Id

  6. Id. at 279-80. 

  7. In Florida, the tort of outrage is synonymous with intentional infliction of emotional distress.  Baker v. Florida Nat’l Bank, 559 So. 2d 284, 287 (Fla. Dist. Ct. App. 1990) (recognizing that the “tort of outrageous conduct” and the tort of intentional infliction of emotional distress are the same claim). 

  8. Armstrong v. H&C Commc’n, Inc., 575 So. 2d 280, 282 (Fla. Dist. Ct. App. 1991). 

  9. Id. at 283. 

  10. Coton, 740 F. Supp. 2d at 1316. 

  11. Thomas v. Hosp. Bd. of Dir. of Lee County, 41 So. 3d 246, 256 (Fla. Ct. App. 2010) (quoting Restatement (Second) of Torts § 46 cmt. f (1965)).