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To determine whether a person's conduct meets the level of extreme and outrageous conduct to establish intentional or reckless infliction of emotional distress under Michigan law, the test is whether the recitation of the facts of the case to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "outrageous!" In reviewing claims of intentional or reckless infliction of emotional distress, it is generally the trial court's duty to determine whether a defendant's conduct may reasonably be regarded as extreme and outrageous so as to permit recovery. Where reasonable minds may differ, whether a defendant's conduct rises to the level so extreme and outrageous as to impose liability is a question for the jury.
This case involves the surreptitious, nonconsensual videotaping of intimate acts of sexual relations in defendant James F. LeGrow's bedroom. After a joint trial, a jury found that LeGrow violated MCL 750.539d, invaded plaintiffs Jessica Lewis, Bethany L. Dennis, and Amy Shemanski's common-law right to privacy, and intentionally or recklessly inflicted emotional distress. LeGrow argued on appeal that because plaintiffs willingly exposed themselves while having sex with him, his bedroom was not a "private place" under § 539d, nor could he intrude on their privacy. Further, LeGrow argued that secretly videotaping himself having sex with plaintiffs was not sufficiently outrageous, nor was his conduct intentional or reckless, to warrant submitting plaintiffs' claims of intentional infliction of emotional distress to the jury. Finally, LeGrow argued that the trial court denied him a fair trial by erroneously admitting certain evidence and by failing to give a requested jury instruction.
Did LeGrow’s conduct meet the level of extreme and outrageous conduct to establish intentional or reckless infliction of emotional distress under Michigan law?
On the common law claim of intrusion upon seclusion, the fact that the tapes were not published was irrelevant. Reasonable jurors could find that, by secretly videotaping the sex, a reasonable person would know that the girlfriends would suffer emotional distress. Each girlfriend testified to emotional distress upon discovery of the videotape. Because factual questions existed, it was not error to deny the motions for summary disposition and a directed verdict as to the emotional distress claims. It was an abuse of discretion to admit testimony under Mich. R. Evid. 404(b) from the boyfriend's brother of an alleged peeping Tom incident, as it raised an improper character to conduct inference. But, the error did not merit reversal, and any errors did not combine to deny substantial justice under Mich. Ct. R. 2.613(A). No public disclosure of private facts was alleged, thus, a mitigation of damages instruction was not applicable.