CV1501 Intentional infliction of emotional distress.

To prove a claim for intentional infliction of emotional distress, [name of plaintiff] must prove each of the following elements:

1. Outrageous and intolerable conduct by [name of defendant]; and
2. [name of defendant] intended to cause emotional distress or acted with reckless disregard of the probability of causing emotional distress; and
3. [name of plaintiff] suffered severe or extreme emotional distress that was caused by [name of defendant]’s conduct.

These requirements will be explained in the following instructions.

References

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)
Nelson v. Target Corporation, 334 P.3d 1010 (Utah App. 2014)
Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

CV1502 Outrageous conduct.

“Outrageous and intolerable” conduct is conduct that offends generally accepted standards of decency and morality or, in other words, conduct that is so extreme as to exceed all bounds of what is usually tolerated in a civilized community. Conduct that is merely unreasonable, unkind, or unfair does not qualify as outrageous and intolerable conduct.

References

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)
Restatement (Second) of Torts § 46 comment d (1964)
Nelson v. Target Corporation, 334 P.3d 1010 (Utah App. 2014)
Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

CV1503 Severe or extreme emotional distress.

Emotional distress may include such things as mental suffering, mental anguish, mental or nervous shock, or highly unpleasant reactions, such as fright, horror, grief, or shame. However, you can award damages for emotional distress only when the distress is severe or extreme.

In determining the severity of distress, you may consider the intensity and duration of the distress, observable behavioral or physical symptoms, and the nature of [name of defendant]’s conduct. [It is possible to have severe and extreme emotional distress without observable behavioral or physical symptoms.}

References

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
Restatement (Second) of Torts § 46 comment j (1964)
See also, Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

Committee Notes

Use of the bracketed sentence at the end of CV1503 may not be appropriate in NIED cases. It appears that the question of whether “it is possible to have severe and extreme emotional distress without observable behavioral or physical symptoms” remains unsettled in Utah in negligent infliction of emotional distress cases. See Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 69-72 (Utah 1998); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 974, 982-83 (Utah 1993).

Amended Dates:

May 23, 2017

CV1504 Definition of intent and reckless disregard.

[Name of plaintiff] must show that [name of defendant] either (1) acted with the intent of inflicting emotional distress, or (2) with no intent to cause harm, intentionally performed an act so unreasonable and outrageous that [name of defendant] knew or should have known it was highly probable that harm would result.

References

White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)

CV1505 Negligent infliction of emotional distress-Direct victim.

In order to recover for negligent infliction of emotional distress, [name of plaintiff] must prove all of the following:

1. [name of defendant] engaged in conduct that [he/she] should have realized involved an unreasonable risk of causing emotional distress to others;
2. [name of defendant] should have realized that [his/her] conduct could cause the sort of emotional distress that might result in illness or bodily harm; and
3. [name of defendant]’s conduct unintentionally caused [name of plaintiff] to sustain severe emotional distress, characterized by illness or bodily harm.

References

Candelaria v. CB Richard Ellis, 2014 UT App 1, ¶ 9, 319 P.3d 708
Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 69-72 (Utah 1998)
Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 974, 982-83 (Utah 1993)
Restatement (Second) of Torts, § 313(1)

Committee Notes

The Utah Supreme Court case of Straub v. Fisher and Paykel Health Care, 1999 UT 102, ¶¶ 7-15, 990 P.2d 384, can be read in two different ways: either as requiring physical peril in all cases of NIED, or as simply rejecting the plaintiff’s argument that she was a direct victim and concluding that she had to be in peril to recover as a bystander. The committee’s review of the other case law in this area did not resolve this question. As such, the committee could not reach a consensus on whether a direct victim must be in actual physical peril (i.e. in the zone of danger), or if the zone of danger test only applies to bystanders. The instruction above is included separately from the bystander instruction in case the latter is true.

Amended Dates:

May 23, 2017

CV1506 Negligent infliction of emotional distress-Bystander

In order to recover for negligent infliction of emotional distress, [name of plaintiff] must prove all of the following:

1. [name of defendant] engaged in conduct that [he/she] should have realized involved an unreasonable risk of causing emotional distress to others,
2. [name of defendant] should have realized that [his/her] conduct could cause the sort of emotional distress that might result in illness or bodily harm;
3. [name of defendant]’s conduct unintentionally caused actual physical harm to a third party;
4. [name of plaintiff] actually witnessed the third party sustain physical harm;
5. [name of plaintiff] was within the zone of danger; and
6. [name of defendant]’s conduct caused [name of plaintiff] to sustain severe emotional distress, characterized by illness or bodily harm.

References

Johnson v. Rogers, 763 P.2d 771, 780, 785 (Utah 1988)
Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 239-42 (Utah 1992)
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1016 (Utah 1995)
Straub v. Fisher and Paykel Health Care, 1999 UT 102, ¶¶ 7-15, 990 P.2d 384
Restatement (Second) of Torts, § 313(2)

Amended Dates:

May 23, 2017

CV1507 Definition of "zone of danger."

To be within the “zone of danger,” [name of plaintiff] must be in such close proximity to a threat of harm created by [name of defendant]’s negligent conduct that [he/she] is placed in actual physical peril.

References

Hansen v. Sea Ray Boats, Inc., 830 P. 2d 236, 239-240 (Utah 1992)
Straub v. Fisher, 990 P.2d 384, 387 (Utah 1999)
Boucher v. Dixie Medical Center, 850 P.2d 1179, 1181 (Utah 1992)

Amended Dates:

May 23, 2017