Sheltra v. Smith

• Decision Date: 19 September 1978
• Docket Number: No. 1-78,1-78
• Citation: 392 A.2d 431,136 Vt. 472
• Parties: Lesley SHELTRA v. Steven L. SMITH.
• Court: Vermont Supreme Court

Page 431

392 A.2d 431

136 Vt. 472

Lesley SHELTRA v. Steven L. SMITH.

No. 1-78.

Supreme Court of Vermont.

Sept. 19, 1978.

Witters, Zuccaro, Willis & Lium, Inc., St. Johnsbury, for plaintiff.

Rexford, Kilmartin & Chimileski, Inc., Newport, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

The central issue in this appeal is whether this Court shall recognize the tort of intentional infliction of mental distress. The instant appeal arose when the trial court below dismissed the plaintiff's complaint for failure to state a cause of action upon which relief could be granted. V.R.C.P. 12(b) (6). We reverse for the reasons more fully outlined below.

The evolution of judicial recognition both of a right to recover damages for mental distress and of an independent cause of action for intentional inflication of mental distress is well catalogued in legal literature as well as in the cases of many jurisdictions. Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033 (1936); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); Prosser, Insult and Outrage, 44 Calif.L.Rev. 40 (1956); Agis v. Howard Johnson Co., --- Mass. ---, 355 N.E.2d 315 (1976); Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961); Nichols v. Central Vermont Railway, 94 Vt. 14, 109 A. 905 (1919).

Traditionally, at common law an action for mental distress alone could not be brought. Damages were recoverable based upon some other actionable tort the so-called "parasitic" or "peg" theory. This reluctance to fashion a direct remedy reflected a policy consideration that because these damages were difficult to assess and prove a flood of fictitious and trivial claims might result if an independent tort were recognized. Mitchell v. Rochester Railway, 151 N.Y. 107, 110, 45 N.E. 354, 354-55 (1896).

This narrow approach was gradually eroded as courts reflected society's increasing valuation of an individual's interest in privacy and emotional well-being. This culminated in 1948 when the American Law Institute recognized as an independent cause of action outrageous conduct causing severe emotional distress. Restatement (Second) of Torts § 46 (1965). ¹ In the thirty years since its adoption, the central focus of courts has been on defining the scope of its application what claims should be considered while denying the trivial and the fictitious.

It is clear that this tort has not previously been recognized in Vermont. Vermont jurisprudence has recognized that mental distress caused by negligent acts resulting in physical injuries is actionable. Nichols v. Central Vermont Railway, supra, 94 Vt. at 18, 109 A. at 907 outlines the general state of the law prior to the seminal law journal article of Magruder, supra. Since Nichols, Vermont decisional law has been concerned with negligent conduct. Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 139 A. 440 (1927) (recovery for the horror and shock of finding a companion who had been killed by an electric fence); Thompson v. Green Mountain Power Corp., 120 Vt. 478, 144 A.2d 786 (1958) (recovery for fright to poultry induced by negligent use of explosives); Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656 (1967) (recovery without physical impact/injury if within zone of danger and if fright results in substantial physical injury or sickness); Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969) (absence from the zone of danger precluded recovery notwithstanding illness proximately caused by witnessing negligent act.)

The appellee contends first that Vermont should not recognize this tort; secondly, that if this Court should recognize this tort, the complaint is legally insufficient on its face because it does not allege the elements necessary to establish a prima facie case. Lastly, he contends that the conduct complained of could never rise to the level of outrageous behavior shocking the conscience of a tolerant society and therefore on public policy grounds this Court should deny the claim as a matter of law.

The tort of intentional infliction of mental distress as described by section 46 of the Restatement has gained sufficient acceptance to be characterized as the general rule. W. Prosser, The Law of Torts § 12, at 49-50 (4th ed. 1971). It has been applied in a wide variety of factual circumstances. Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976) (misrepresentations and mishandling of mortician services); Fletcher v. Western Nat. Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78 (1970) (bad faith in settling insurance claims); Samms v. Eccles, supra, (repeated solicitations to a married woman to engage in illicit sexual activities); George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971) (debt collection practices); and other cases cited at 64 A.L.R.2d 100 (1959). We believe it is appropriate to recognize it in Vermont at this time.

Various reasons have been advanced for not recognizing this tort. For example it is claimed that proof will be difficult and that the measure of damages will be speculative. Yet, those difficulties have not been...