Law School Case Brief
Brower v. Ackerley - 88 Wash. App. 87, 943 P.2d 1141 (1997)
The Restatement (Second) of Torts § 21 defines assault, in part, as follows: (1) an actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. According to The Restatement (Second) of Torts § 31, words alone are not enough to make an actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person. Infliction of emotional distress is a better-suited cause of action when mere words cause injury, even though the mental discomfort caused by a threat of serious future harm on the part of one who has the apparent intention and ability to carry out his threat may be far more emotionally disturbing than many of the attempts to inflict minor bodily contacts which are actionable as assaults.
A plaintiff claiming negligent infliction of emotional distress must show the distress to be manifested by "objective symptomatology", i.e., "physical symptoms evidencing and resulting from the emotional distress."
The tort of intentional or reckless infliction of emotional distress, more commonly known as the tort of outrage, is another vehicle for the recovery of emotional distress damages in the absence of other tort remedies. The elements of outrage are (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.
Over a period of 20 months, Jordan Brower received harassing telephone calls at his home, allegedly from Christopher and Theodore Ackerley. Brower feared for his safety and that of his family. He experienced feelings of panic, terror, and insecurity as well as sleeplessness and an inability to concentrate. Brower appealed the judgment of the Superior Court of King County (Washington), which entered a summary judgment dismissal of his civil claims of assault, negligence, and the tort of outrage against Christopher and Theodore Ackerley.
Did the lower court err in dismissing Brower’s claims for assault and negligent infliction of emotional distress against the telephone callers?
The court affirmed the dismissal of the Brower’s claim of civil assault. The threats, however frightening, were not accompanied by circumstances indicating that the callers were in a position to reach the injured party or to inflict imminent physical violence. The court also affirmed the dismissal of the negligent infliction of emotional distress claim. Brower failed as a matter of law to establish an objective symptomatology, or physical symptoms evidencing and resulting from the emotional distress. However, the court held that Brower was entitled to a jury trial on his tort claim of outrage. A jury could find from Brower’s description of his acute and enduring anxiety that he experienced more emotional distress than a person should ordinarily be expected to put up with as a part of the price of living among people.
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