Contreras v. Crown Zellerbach Corp.

• Decision Date: 30 June 1977
• Docket Number: No. 44623
• Citation: Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (Wash. 1977)
• Parties: , 36 Fair Empl.Prac.Cas. (BNA) 571, 15 Empl. Prac. Dec. P 7853 David A. CONTRERAS and Sandra Contreras, husband and wife, Appellants, v. CROWN ZELLERBACH CORPORATION, a corporation, Respondent.
• Court: Washington Supreme Court

Page 735

88 Wn.2d 735

565 P.2d 1173, 36 Fair Empl.Prac.Cas. (BNA) 571,

15 Empl. Prac. Dec. P 7853

David A. CONTRERAS and Sandra Contreras, husband and wife, Appellants, v. CROWN ZELLERBACH CORPORATION, a corporation, Respondent.

No. 44623.

Supreme Court of Washington, En Banc.

June 30, 1977.

R. Graham Cross, Longview, for appellants.

Studley, Purcell, Spencer & Guinn, Paul R. Roesch, Jr., Longview, for respondent.

UTTER, Associate Justice.

David Contreras and his wife brought an action against Crown Zellerbach Corporation alleging five causes of action based upon allegedly abusive and improper conduct of Crown Zellerbach's employees and supervisory personnel. Crown Zellerbach moved to dismiss the first claim for relief, which is premised upon the tort of outrage, for failure to state a claim. The trial court granted this motion to dismiss and Contreras appeals. One remaining claim was dismissed by stipulation of the parties and claims for relief under the Washington civil rights act, RCW 49.60, the Civil Rights Act of 1866, 42 U.S.C. § 1981, and a claim for conspiracy under 42 U.S.C. § 1985, still remain. We reverse the trial court and find the pleadings state a claim based upon the tort of outrage as defined in Restatement (Second) of Torts § 46(1).

Appellants' complaint alleges the following facts: David Contreras and his wife lived in Cathlamet where Mr. Contreras was employed by respondent through the fall and winter of 1973. He was wrongfully terminated on January 24, 1974. During the time of his employment he was subjected to continuous humiliation and embarrassment by reason of racial jokes, slurs and comments made in his presence by agents and employees of the defendant corporation on the job site and during working hours. Respondent's foreman and managing agents failed to control their employees and to accord appellant the right to work free of racial discrimination, slurs, comments and pressures. Respondent's agents and employees, while acting within the scope of their employment, both while appellant was employed and after his discharge, made numerous statements accusing appellant wrongfully of stealing property owned by respondent. The effect of these untrue statements was to prevent appellant from seeking and holding permanent employment in the Cathlamet area and to hold him and his wife up to public scorn and ridicule. Some of the statements made by respondent's agents and employees were made maliciously or with knowledge of their falsity or when they should have known the statements were false. This conduct resulted in an inability of appellant to obtain employment which in turn made him unable to pay his bills and ruined an otherwise excellent credit rating. His failure to find full-time employment is a direct and proximate result of respondent's agents and employees' slander and racial actions.

Appellant's claim for relief is that respondent's conduct was intentional or reckless and so extreme in degree as to be beyond all reasonable bounds of decency. Such conduct in turn caused him severe emotional distress by reason of the acts of intimidation, demotions, humiliations and public exposure to scorn and ridicule when respondent's agents knew or should have known that appellant, by reason of his nationality and background as a Mexican-American, was particularly susceptible to emotional distress from defendant's conduct. He alleges respondent's conduct thereby amounts to the tort of outrage. ¹

The trial court indicated it was dismissing the first cause of action based upon the tort of outrage inasmuch as the only authority for the tort of outrage in this state, Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975), was limited to the facts of that case. In Grimsby, this court considered whether we would adopt subsection (2) of Restatement (Second) of Torts § 46. The facts there involved a claim by a husband for recovery of tort damages for distress he suffered when the hospital and doctors treating his wife allegedly breached the patient-physician relationship by abandoning her and failing to provide medical care causing suffering and resulting in her death before his eyes. The facts of that case, by necessity, involved only a claim by a member of a third person's family, the husband, who was present at the time allegedly outrageous conduct was visited on his wife. We there adopted the tort of outrage for conduct against the wife which the husband had witnessed. We specifically held, among other limitations adopted, that "the plaintiff must be an immediate family member of the person who is the object of the defendant's actions, and he must be present at the time of such conduct (comment l )." Grimsby v. Samson, supra at 60, 530 P.2d at page 295.

The trial court believed by our emphasis on the fact that the plaintiff must be an immediate family member of the person who is the object of the defendant's actions, that it was our intent to limit this tort to third-person situations only. While this interpretation is arguable, such was not our intent. We went on to say in Grimsby, at page 60, 530 P.2d at page 296, that "we adopt the theory of Restatement (Second) of Torts, § 46(1), (2) and (2)(a) . . ." There is no reason to limit recovery on the tort of outrage to members of the family of those directly injured while excluding recovery by the person primarily injured and we decline to do so. W. Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956). A vast majority of cases involving the tort of outrage have been actions brought by the recipient of the conduct. Agis v. Howard Johnson Co., Mass., 355 N.E.2d 315 (1976); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970); see Annot., 64 A.L.R.2d 100 (1959).

Liability for outrage is of ancient lineage. The law in the classical age of the Roman Empire allowed recovery for outrage or insult as the delict of "iniuria." It required an intent to insult and that anger be shown as soon as the facts were known. Intent to insult, however, could be presumed from the facts, which spoke for themselves. Defamation under Roman law was also a case of "iniuria," where the basis of liability was not loss of reputation but outrage to feelings. Publication to a third party was thus arguably unnecessary. W. Buckland and A. McNair, Roman Law and Common Law 295-300 (1936).

Acceptance of the tort of outrage has undergone a remarkable evolutionary process in the United States in a relatively short time. Section 46 of the Restatement of Torts in its original form stated flatly there was no liability for the intentional infliction of emotional distress, or for bodily harm resulting from it, except in cases of assault and of the special liability of carriers covered in section 48. This position was reversed in the 1948 supplement and the comments were completely rewritten. Restatement (Second) of Torts § 46 at 21 (Tent. Draft No. 1, 1957). The Restatement and courts supporting it have since drastically changed their position, from denial of liability for intentionally inflicting emotional distress to the allowance of liability against one who intentionally caused emotional distress without privilege to do so, and later to the present rule which requires that the conduct be extreme and outrageous before liability will attach. Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969).

In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action. The court there recognized that the 1948 supplement to Restatement of Torts § 46 changed the language in the initial statement in Restatement, Torts (1934), § 46, to allow recovery from "(o)ne who, without a privilege to do so, intentionally causes severe emotional distress to another . . ." In its opinion this court quoted subsection (g) of the then section 46 "(g) In short, the rule stated in this section imposes liability for intentionally causing severe emotional distress in those situations in which the actor's conduct has gone beyond all reasonable bounds of decency. The prohibited conduct is conduct which in the eyes of decent men and women in a civilized community is considered outrageous and intolerable. Generally, the case is one in 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 Systems, supra at 447, 448, 341 P.2d at 864. Thus, even before Grimsby v. Samson, supra, and in harmony with many other jurisdictions we recognized liability could be premised on outrageous conduct such as that alleged here.

Respondent argues that even if it is held the direct recipient of allegedly outrageous conduct may bring suit based upon the tort of outrage, the claim here stated is inadequate. There are limitations on the tort that we specifically noted in Grimsby. ² With these limitations in mind, the trial court first determines whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Restatement (Second) of Torts § 46; Alcorn v. Anbro Engineering, Inc., supra 2 Cal.3d at 498, 86 Cal.Rptr. 88, 468 P.2d 216; Muhich v. Family Finance Corp., 72 Wis.2d 625, 241 N.W.2d 619 (1976).

When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior. Restatement (Second) of Torts § 46 comment e. The relationship between the parties is a significant factor in determining whether liability should be imposed. Alcorn v. Anbro Engineering, Inc., supra 2 Cal.3d at 498 n. 2, 86 Cal.Rptr. 88, 468 P.2d 216. See Dawson v. Associates Financial Services...