Intentional Infliction of Emotional Distress Lawsuits Outside the Employment Context as an Additional Claim in Libel, Slander and Defamation Suits
Our Chicago libel slander and defamation lawyers have litigated a number of defamation and employment lawsuits that have included a claim for Intentional Infliction of Emotional Distress (“IIED”). We have defended and prosecuted these claims and obtained settlements in favor of women subjected to repeated and horrible sexual abuse which includes assaults and a barrage of totally inappropriate and humiliating comments. In the libel context, outside the workplace and employment litigation, IIED claims are more difficult to pursue.
Under Illinois law, the standard for alleging an IIED claim is exceptionally high. Pub. Fin. Corp. v. Davis, 66 Ill. 2d 85, 89-90 (1976); Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 39 (1st Dist. 1997) (explaining that the test for establishing an IIED claim is “stringent”); Lewis v. Sch. Dist. #70, 523 F.3d 730, 747 (7th Cir. 2008) (“This standard is quite high.”). The plaintiff must allege: (1) that the defendant engaged in conduct that was truly extreme and outrageous; (2) the defendant intended her conduct to inflict severe distress or knew that there was a high probability that her conduct would inflict such distress; and (3) that the conduct in fact caused severe emotional distress. Pub. Fin. Corp., 66 Ill. 2d at 89-90. The tort “clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities.” Id. (quoting Restatement (Second) of Torts § 46, comment d, at 73 (1965)).
“Furthermore, infliction of emotional distress alone is not sufficient to give rise to a cause of action.” Mucklow v. John Marshall Law Sch., 176 Ill. App. 3d 886, 895 (1st Dist. 1988). “The emotional distress must be severe.” Id. (emphasis in original). “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Pub. Fin. Corp., 66 Ill. 2d at 90. “[T]he infliction of such emotional distress as fright, horror, grief, shame, humiliation and worry is not sufficient to give rise to a cause of action.” Id.
We successfully defended an IIED case where our client allegedly sent a text calling the plaintiff a “whore” and writing “you’re lucky I didn’t file charges and call immigration on you! I feel sorry for you and your unborn child being deported [because] you are illegal. We funded this town and you’re from midway airport/Poland you loser!” Our client also threatened to file an order of protection no contact order against plaintiff’s boy-friend.
When stripped of its rhetoric and inappropriate commentary, plaintiff’s complaint alleged that our client engaged in three types of conduct: (1) making “insulting comments,” “mouthing” insults, and smiling “in a provoking manner;” (2) making a veiled threat to report plaintiff’s illegal immigrant status to the authorities; and (3) filing a No Contact Petition against plaintiff’s boy-friend.
We argued that none of this conduct, even if true, constitutes extreme and outrageous conduct. The title “extreme and outrageous” is limited to conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 973 (2d Dist. 1991) (quoting Pub. Fin. Corp., 66 Ill. 2d at 90)). “Whether conduct is extreme and outrageous is judged on an objective standard.” Welsh, 306 Ill. App. 3d at 154 (quoting Doe v. Calumet City, 161 Ill. 2d 374, 392 (1994)).
Based on an objective standard, the law simply does not consider heated and inappropriate statements made by former friends during a spat or filing for an order of protection to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” See, e.g., Miller v. Equitable Life Assur. Soc. of the U.S., 181 Ill. App. 3d 954, 956 (1st Dist. 1989) (“offensive touching” of plaintiff’s “breast, shoulders and head,” racist remarks, and being encouraged by manager to “use sex to make insurance sales” were not extreme and outrageous conduct); Briggs v. N. Shore Sanitary Dist., 914 F. Supp. 245, 252 (N.D. Ill. 1996) (subjecting plaintiff to racial slurs and hanging a pickaninny doll in her office “[did] not meet the high standard for extreme and outrageous conduct required in Illinois”). As the times change during the “me too” era many courts will loosen this high bar further. Illinois has already long recognized that when a situation involves abuse of a position of power or where an employee informs the employer that the misconduct is upsetting them that a lower standard is applied than in less stressful circumstances. We have obtained substantial settlements instances of sexual harassment that were sufficiently severe that the court sustained an IIED claim against a supervisor and sexual predator.
We have also defeated claims that do not meet the high standard for prosecuting IIED claims such as the claim where our client called the plaintiff a whore and threatened to report her to immigration using racial slurs.A. Insults Cannot Constitute Extreme and Outrageous Conduct
“Illinois case law makes clear that under no circumstances would mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities qualify as outrageous conduct.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 270 (2003) (emphasis added) (internal quotes omitted). We used that standard to obtain dismiss of the claims against our client arguing that “mere insults, indignities, threats, annoyances, petty oppressions or other trivialities … under no circumstances” can sustain a claim for IIED. Consequently, we convinced the court that plaintiff could not establish the first element of her IIED claim based on insulting text messages or provoking smiles.B. Threats Cannot Constitute Extreme and Outrageous Conduct
For much the same reason, alleging that our client made a veiled threat in a text message fails to establish that our client engaged in extreme and outrageous behavior. As stated, the tort does not extend to heated statements between former friends during a spat. And, as courts regularly repeat, threats—like insults—do not constitute extreme and outrageous conduct. Feltmeier, 207 Ill. 2d at 270 (“Illinois case law makes clear that under no circumstances would…threats…qualify as outrageous conduct.”); Pub. Fin. Corp., 66 Ill. 2d at 89-90 (“liability clearly does not extend to…threats…”); Welsh, 306 Ill. App. 3d at 154 (same); Layne, 210 Ill. App. 3d at 973 (same).
The problems with the allegation that our client threatened to report the plaintiff for violating immigration laws are many. The first being that our client never threatened the plaintiff. Her text message said “you’re lucky I didn’t file charges and call immigration on you! I feel sorry for you and your unborn child being deported bc you are illegal.” Nowhere in this text did our client actually threaten to do anything.
The second problem is that reporting suspected illegal activity to authorities is not extreme and outrageous conduct. Schiller, 357 Ill. App. 3d at 449-50 (“We do not believe that the body of law supports plaintiffs’ contention that making reports to the police and other officials constitutes extreme and outrageous conduct”); id. at 451 (making more than a dozen complaints to police and homeowners association did not constitute extreme and outrageous conduct because “Defendants were exercising their legal rights as citizens and members of the Association in making the complaints to the authorities and to the Association.”); see Buechele v. St. Mary’s Hosp. Decatur, 156 Ill. App. 3d 637, 642 (4th Dist. 1987) (reporting pregnant nurse for stealing drugs not extreme and outrageous conduct); Balark v. Ethicon, Inc., 575 F.Supp. 1227, 1231 (N.D. Ill.1983) (supplying the plaintiff’s name to the FBI as a suspect in the Tylenol murders did not constitute extreme and outrageous conduct); see also Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 406 (1st Dist. 2009) (“the long-standing law in Illinois [is] that statements to law enforcement officials are absolutely privileged.”).
If actually reporting conduct to the authorities cannot be extreme and outrageous conduct, then a fortiori simply threatening to do so is not. Thus, our client’s text message, as the Court found, did not constitute extreme and outrageous conduct under any circumstances because threats are not extreme and outrageous conduct and neither is reporting suspected illegal conduct to the authorities. Pub. Fin. Corp., 66 Ill. 2d at 89-90; Schiller, 357 Ill. App. 3d at 449-50.C. Emotion Distress Suffered Must be Severe
The very types of emotional distress that Plaintiff alleged to have suffered—fear, worry, stress, anxiety, lack of sleep, headaches, and muscle pain—have been found insufficient to establish severe emotional distress. Id.; Khan v. American Airlines, 266 Ill. App. 3d 726, 733 (1st Dist. 1994) (problems sleeping, fear of re-arrest, and reoccurring nightmares did not constitute severe emotional distress); Knysak v. Shelter Life Insurance Co., 273 Ill. App. 3d 360, 371 (5th Dist. 1995) (depression and anxiety not severe emotional distress); Mucklow v. John Marshall Law Sch., 176 Ill. App. 3d 886, 895 (1st Dist. 1988) (“anxieties, depression, and other physical manifestations such as the loss of time, loss of ability to concentrate, and interference with peace of mind” did not constitute severe emotional distress). Thus, even if Plaintiff proved all she alleges she would not have proven that she suffered severe emotional distress. Plaintiff’s response does not even address this defect in Plaintiff’s Complaint. Plaintiff’s failure to allege facts which if proved would establish this element of her IIED claim also compels dismissal.D. Our Client’s Speech was Protected by the First Amendment
The final basis for dismissal of Plaintiff’s Complaint— which we successfully argued—is that the speech Plaintiff complained of is protected by the First Amendment. Madison v. Frazier, 539 F.3d 646, 657 (7th Cir. 2008) (“Free speech is not restricted to compliments.... [M]embers of a free society must be able to express candid opinions and make personal judgments. And those opinions and judgments may be harsh or critical-even abusive-yet still not subject the speaker or writer to civil liability.”). Claims for IIED cannot and do not abridge one’s First Amendment rights. Snyder v. Phelps, 131 S.Ct. 1207 (2011); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Green, 286 Ill. App. 3d 1, 13 (explaining that the First Amendment applies to claims of IIED).
The bar for alleging an IIED claim is high. This is meant to prevent spats between friends and family from escalating into legal battles.
If you have been defamed in the workplace or over the internet with extreme and outrageous accusations or other been subjected to extreme abuse, our Chicago defamation slander and libel lawyers can bring a claim for intentional infliction of emotional distress on your behalf. Our Chicago defamation slander and libel lawyers and our Chicago employment litigation attorneys, in the right case, which meets the high bar for such claims, have successfully prosecuted claims for intentional infliction of emotional distress. We have brought IIED claims on behalf of women subjected to horrible and repeated sexual abuse and assaults in the work place and obtained substantial settlements. You can view our record here. For a free consultation call us at 630-333-0333. You can also contact us online.