Ford v. Hutson

• Decision Date: 25 March 1981
• Docket Number: No. 21418,21418
• Citation: 276 S.C. 157,276 S.E.2d 776
• Court: South Carolina Supreme Court
• Parties: Larissa S. FORD, Respondent, v. Arthur C. HUTSON, Appellant.

Page 776

276 S.E.2d 776

276 S.C. 157

Larissa S. FORD, Respondent, v. Arthur C. HUTSON, Appellant.

No. 21418.

Supreme Court of South Carolina.

March 25, 1981.

P. Michael Duffy and Michael A. Scardato, Hawkins & Morris, Charleston, for appellant.

Thomas Dewey Wise, Wise, Cole & Pearlman, Charleston, for respondent.

LITTLEJOHN, Justice:

A jury awarded plaintiff Larissa S. Ford $1,500 actual damages plus $100,000 punitive damages against defendant Arthur C. Hutson for intentional infliction of emotional distress. The judge granted a new trial unless the plaintiff remit $65,000 of the punitive damages award. Plaintiff remitted. Defendant has appealed.

This court must determine initially whether South Carolina recognizes a cause of action for intentional infliction of emotional distress. Assuming we allow this comparatively new, independent tort, we must then decide whether a recovery was warranted under the facts involved.

I. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IN SOUTH CAROLINA

Recovery for mental or emotional disturbance based upon violation of a legal right for which other damages are recoverable has long been accepted in this state. Perhaps the most common example occurs when damages for mental suffering are allowed in a personal physical injury suit. See Mack v. South Bound R. Co., 52 S.C. 323, 29 S.E. 905 (1898). Also, compensation for mental shock and suffering, wounded feelings, grief and sorrow has beyond question been allowed in wrongful death actions under Lord Campbell's Act. Mishoe v. Atlantic Coast R. Co., 186 S.C. 402, 197 S.E. 97 (1938). However, the concept of bringing an action seeking damages for mental and emotional injury outside the scope of some traditionally recognized tort (e. g. assault, battery, false imprisonment) is a relatively novel one in this country. See William L. Prosser, Law of Torts (4th ed. 1971). Professor Prosser states the following at § 12:

"It has gradually become recognized that there is no magic inherent in the name given to a tort, ... and that the infliction of mental injury may be a cause of action in itself. Its limits are as yet ill defined, but it has been extended to its greatest length in the case of intentional acts of a flagrant character, whose enormity adds special weight to the plaintiff's claim, and is in itself an important guarantee that the mental disturbance which follows is serious and not feigned."

Numerous jurisdictions today have recognized that infliction of mental suffering is, in fact, a cause of action in itself. This new tort is commonly denominated, appropriately, "infliction of emotional distress," or "outrage." While this legal theory has not been consistently accepted among the states, it has experienced a dynamic development. ¹

"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 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)." Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977).

In Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265 (1958), we affirmed recovery of damages for shock, fright, and emotional upset despite the absence of any physical impact between the plaintiff and defendant. In that case, the plaintiff alleged that his skin rash resulted from his emotional distress proximately caused when the truck of defendant collided with plaintiff's house.

In a series of more recent cases, this court has recognized, either expressly or impliedly, that one's wilful, malicious conduct proximately causing another's emotional distress may be actionable. Turner v. ABC Jalousie Co. of N. C., 251 S.C. 92, 160 S.E.2d 528 (1968); Rhodes v. Security Finance Corp. of Landrum, 268 S.C. 300, 233 S.E.2d 105 (1977); Bellamy v. General Motors Acceptance Corp., 269 S.C. 578, 239 S.E.2d 73 (1977); Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E.2d 812 (1979). For example, where plaintiff alleged that she suffered a nervous breakdown after defendant had used vile, profane, and abusive language, we held that a cause of action had been stated. Turner, supra. However, we have been careful to distinguish between legally stating a cause of action and successfully proving the claim. Thus, we have said:

"(T)here is no liability for emotional distress without a showing that the distress inflicted is extreme or severe ... (and no recovery is justified where) (t)here is no showing that (the defendant's conduct was) unreasonable or abusive, nor that (plaintiff's) emotional upset was other than transient and trivial." Rhodes, supra.

"(However, conduct which) demonstrated a callous disregard for (plaintiff's) well-being (and was) clearly unreasonable and abusive (may be actionable). Bellamy, supra.

In our latest opinion in this area, we held the following:

"In order to prevail in a tortious action in which the sole damages alleged are those of mental anguish, plaintiff must show that the conduct on the part of defendant was extreme and outrageous, causing distress that is of an extreme or severe nature." Hudson, supra.

In support of our decision in Hudson dismissing the action, we cited from the Restatement (Second) of Torts (1965), § 46.

Inasmuch as this court has already implicitly indicated that conduct intended to invade freedom from severe emotional distress is tortious, we now lend express recognition to this proposition. We adopt the rule of liability stated in § 46 of the Restatement (Second) of Torts relating to intentional infliction of emotional distress:

" § 46. Outrageous Conduct Causing Severe Emotional Distress.

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

We cite with approval the language found in Vicnire v. Ford Motor Co., 401 A.2d 148 (Me.1979).

"Specifically, in order to recover for the intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct, Restatement (Second) of Torts § 46, Comment i ; (2) the conduct was so 'extreme and outrageous' as to exceed 'all possible bounds of decency' and must be regarded as 'atrocious, and utterly intolerable in a civilized community,' Restatement (Second) of Torts § 46, Comment d ; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was 'severe' so that 'no reasonable man could be expected to endure it.' Restatement (Second) of Torts § 46, Comment j. 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. Restatement (Second) of Torts § 46, Comment k."

II. APPLICATION TO PRESENT FACTS

In 1971, plaintiff, owner of a Charleston real estate agency, sold a house constructed by her husband to defendant, a physician recently employed by the Medical University of South Carolina. Prior to actual purchase, defendant required an appraisal of the house, sent a known builder to inspect it, and directed his accountant to determine the reputation of plaintiff as a realtor.

Thereafter, during approximately six to eighteen months, defendant began experiencing problems with his new house, including a faulty air conditioning unit, rotting rear deck, and sagging roof line. The cause and liability for these defects were in dispute.

Between 1972 and 1974, defendant personally confronted plaintiff and rudely quarrelled about the house and about the responsibility of plaintiff to make the necessary repairs. The number and manner of these incidents is disputed. Plaintiff contends that defendant orally accosted her with insulting and/or profane remarks on no less than seven different occasions. Defendant admitted to two such occasions but contradicted plaintiff's version of the circumstances. As to scenes at plaintiff's home, she testified that while she was discussing business matters with a friend, the defendant, who lived next door, burst in unannounced and began cursing her in a loud, vicious manner. She described one incident as follows:

"A. Mrs. Chakeris and I were sitting in my kitchen drinking coffee, discussing her house. Again, Dr. Hutson, unannounced, without knocking, threw the door open and walked in and started in on me with profanities. He says to me, this Goddam house, it's going to fall apart and it is going to deteriorate, and I said, Dr. Hutson, I'll be glad even at this stage to buy the house back from you. At that point Mrs. Chakeris got up and says, well, I got to run."

Mrs. Chakeris similarly described the incident by testifying "... it seemed very abrupt and very rude and very it just seemed outrageous that he would run into the house and start cussing someone out."

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