C. Elements Defined
1. Severe Emotional Distress Inflicted by the Defendant
The first element requires that the defendant intentionally or recklessly7 inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his or her conduct. Ordinarily, a successful claim of intentional infliction of emotional distress requires that it was the defendant who inflicted the emotional distress. For example, in Park v. Southeastern Service Corp.,8 a teacher sued the defendant corporation after one of its employees, a contract janitor for the school, was found to have installed a hidden video camera in one of the school's faculty lounges, positioned to record female employees using the restroom. The plaintiff asserted a claim of outrage, alleging that the employee's surreptitious videotaping of her using the restroom, while serving as an employee of the defendant, amounted to outrageous conduct, performed intentionally, which caused her to suffer severe emotional distress. She also asserted the cause of action under a theory of respondeat superior liability. The court said that a plaintiff seeking recovery from the master for injuries must establish that the relationship of master and servant existed at the time of the injuries and that the servant was about the master's business and acting within the scope of his or her employment. The court concluded the plaintiff's claim should be dismissed because the plaintiff had not raised a plausible argument that the employee's decision to video record plaintiff was an act committed in furtherance of his employment.9
a. Mental anguish
Although 'severe' emotional distress is usually manifested by 'shock, illness or other bodily harm,' such objective symptomatology is not an absolute prerequisite for recovery of damages for intentional infliction of emotional distress.10 It is proper to bring an action for emotional distress where the sole damage alleged is that of mental anguish.11 Where harm is lacking, however, the courts should look initially for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious.12
b. Effect of special relationship
Conduct which might ordinarily be found forgivable may be deemed severe when there is some special relationship between the plaintiff and the defendant establishing a higher than usual duty for defendant toward plaintiff.13 For example, in the vast majority of cases where liability has been found, the common thread has been the existence of three factors.14 First, a pre-existing relationship between the parties has existed, typically a debtor-creditor, insured-insurer, landlord-tenant, physician-patient or employer-employee relationship.15 Furthermore, the defendant's conduct has involved excessive self-help in asserting a legal right or avoiding a legal obligation flowing out of the relationship, or coercive and oppressive abuse of an employee by an employer.16 Finally, the conduct will be adjudged actionable if the evidence has clearly shown that the defendant calculatedly inflicted suffering or heedlessly and contemptuously disregarded the plaintiff's present emotional suffering either to force the plaintiff to accede to the defendant's wishes or to punish the plaintiff for prior failure to comply.17
In Argoe v. Three Rivers Behavioral Center and Psychiatric Solutions,18 the defendant attorney represented the plaintiff's son who was her attorney-in-fact under a Durable Power of Attorney. The attorney created a trust and transferred the plaintiff's property into it. She argued the attorney's conduct was extreme and outrageous because he owed her a duty of care arising out of an attorney-client relationship and breached that duty. The South Carolina Supreme Court concluded the plaintiff was not owed a duty of care arising out of an attorney-client relationship — evidently because it found no attorney-client relationship existed between the parties — and affirmed the decision of the trial court to grant summary judgment to the defendant.
2. Extreme and Outrageous Conduct - Exceeding All Bounds of Decency
In Todd v. South Carolina Farm Bureau Mutual Insurance Co,19 the Court of Appeals adopted guidance to help identify actionable conduct. The court listed three guidelines taken from Restatement § 46, comment f:
The conduct must be "extreme and outrageous," exceeding "all bounds of decency," "atrocious," and "utterly intolerable"; (2) abusive conduct by a defendant in actual or apparent authority over a plaintiff, or with power to affect the plaintiff's interest, may give rise to a characterization of the conduct as outrageous,...and (3) conduct may be adjudged outrageous because a defendant acts with knowledge that a plaintiff is peculiarly susceptible to emotional distress.20
"Outrage" is not a replacement for existing tort actions, but is a remedy for tortious conduct where no remedy previously existed, and wrongs that can be brought under other actions, such as defamation, are excluded.21 It is for the court to determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and only where reasonable persons may differ is the question one for the jury.22
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