Alien Tort Claims Act

Recently, American courts have begun adjudicating civil liability for intentional torts and crimes under the Alien Tort Claims Act (ATCA), 28 U.S.C. §1350. The development of this action is recounted in Wiwa v. Royal Dutch Petroleum Co., ___ F.3d ___, (2d Cir. 2000). That case involved civil suits brought against international Shell Oil defendants for the executions of several Nigerians, including prominent author Ken Saro Wiwa, arising out of disputes over the development of oil resources in the homeland of the Ogoni people. Plaintiffs alleged that, although the government of Nigeria tortured and executed the claimants and their decedents, these abuses were “instigated, orchestrated, planned, and facilitated by Shell  Nigeria under the direction of the defendants,” who were said to have “provided money, weapons, and logistical support to the Nigerian military . . . , participated in the fabrication of murder charges . . . , and bribed witnesses to give testimony.” After finding personal jurisdiction, the court turned to the defendants’ argument that the case should be pursued in England because of forum non conveniens. The plaintiffs asserted that in addition to the ATCA, the 1991 passage of the Torture Victim Prevention Act, 28 U.S.C. §1350 App, argued for keeping the cases in the United States. In addressing that issue, the court extensively reviewed the scope of these statutes:

The Alien Tort Claims Act was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21 (2d Cir.1980) (identifying only two previous cases that had relied upon the ATCA for jurisdiction). As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga, 630 F.2d 876 (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F.Supp.

162 (D.Mass.1995) (alleging abuses by Guatemalan military forces).

These suits produced several important decisions interpreting the meaning and scope of the 1789 Act. For example, in [Filartiga v. Pena-Irala], this court held that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. More recently, we held in [Kadic v. Karadzic], that the ATCA reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties.

In passing the Torture Victim Prevention Act {TVPA], Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. While the 1789 Act expressed itself in terms of a grant of jurisdiction to the district courts, the 1991 Act (a) makes clear that it creates liability under U.S. law where under "color of law, of any foreign nation" an individual is subject to torture or "extra judicial killing," and

(b) extends its remedy not only to aliens but to any "individual," thus covering citizens of the United States as well. [ ] The TVPA thus recognizes explicitly what was perhaps implicit in the Act of 1789-- that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law. [ ]

Whatever may have been the case prior to passage of the TVPA, we believe plaintiffs make a strong argument in contending that the present law, in addition to merely permitting U.S. District Courts to entertain suits alleging violation of the law of nations, expresses a policy favoring receptivity by our courts to such suits. Two changes of statutory wording seem to indicate such an intention. First is the change from addressing the courts' "jurisdiction" to addressing substantive rights; second is the change from the ATCA's description of the claim as one for "tort ... committed in violation of the law of nations ..." to the new Act's assertion of the substantive right to damages under U.S. law. This evolution of statutory language seems to represent a more direct recognition that the interests of the United States are involved in the eradication of torture committed under color of law in foreign nations.

. . .

One of the difficulties that confront victims of torture under color of a nation's law is the enormous difficulty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place. It is not easy to bring such suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and difficult to administer. In addition, because they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they are brought. Finally, because characteristically neither the plaintiffs nor the defendants are ostensibly either protected or governed by the domestic law of the forum nation, courts often regard such suits as "not our business."

The new formulations of the Torture Victim Protection Act convey the message that torture committed under color of law of a foreign nation in violation of international law is "our business," as such conduct not only violates the standards of international law but also as a consequence violates our domestic law. In the legislative history of the TVPA, Congress noted that universal condemnation of human rights abuses "provide[s] scant comfort" to the numerous victims of gross violations if they are without a forum to remedy the wrong. [ ] This passage supports plaintiffs' contention that in passing the Torture Victim Prevention Act, Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts. If in cases of torture in violation of international law our courts exercise their jurisdiction conferred by the 1789 Act only for as long as it takes to dismiss the case for forum non conveniens, we will have done little to enforce the standards of the law of nations.

This is not to suggest that the TVPA has nullified, or even significantly diminished, the doctrine of forum non conveniens. The statute has, however, communicated a policy that such suits should not be facilely dismissed on the assumption that the ostensibly foreign controversy is not our business. The TVPA in our view expresses a policy favoring our courts' exercise of the jurisdiction conferred by the ATCA in cases of torture unless the defendant has fully met the burden of showing that the [ ] factors "tilt [ ] strongly in favor of trial in the foreign forum." [ ]

The court held that defendants’ showing was inadequate and rejected the defense of forum non conveniens.

3. False Imprisonment

                                          LOPEZ V. WINCHELL'S DONUT HOUSE

                                                       Illinois Appellate Court, 1984.

                                                 126 Ill.App.3d 46, 466 N.E.2d 1309.

Lorenz, Justice:

            Plaintiff appeals from an order of the circuit court granting defendant corporation's motion for summary judgment.  Plaintiff contends that the trial court erred in entering summary judgment against her because a genuine issue of material fact existed concerning her charge that she was falsely detained and imprisoned.  For the reasons which follow, we affirm the trial court's decision.

            Count I of plaintiff's unverified two‑count complaint alleged that plaintiff was employed as a clerk in defendant's donut shop in Woodridge, Illinois, for approximately three years;  that on or about April 8, 1981, defendant, through its agents and employees, Ralph Bell and James Cesario, accused her of selling donuts without registering sales and thereby pocketing defendant's monies;  and that she was falsely detained and imprisoned against her will in a room located on defendant's premises, with force, and without probable and reasonable cause, by defendant's employees.  Count I of her complaint also alleged that as a result of defendant's employees' wilful and wanton false imprisonment, she was exposed to public disgrace;  greatly injured in her good name and reputation;  suffered, and still suffers, great mental anguish, humiliation and shock;  wrongfully terminated from her employment;  required to seek medical attention;  all of which prevented her from attending to her usual affairs.

            [Defendant's answer consisted of an affirmative defense that it had reasonable grounds to believe that plaintiff had engaged in retail theft and that its inquiry as to whether she had failed to ring up certain retail sales was conducted "in a reasonable manner and for a reasonable length of time."  Defendant then moved for summary judgment.]

            The motion included portions of plaintiff's deposition which disclosed the following.  James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and asked her to come down to the donut shop;  he did not explain his reasons for wanting her to do so.  As a result of this call, plaintiff walked to the store from her home, arriving ten minutes later.  Upon her arrival at the store, Cesario asked her to accompany him into the baking room, which was located at the rear of the store;  Ralph Bell was also present in the room.  After Cesario asked plaintiff to sit down, she indicated that they (Cesario and Bell) closed the door and locked it by putting a "little latch on."  She stated that the two men told her that they had proof that spotters going from store to store had purchased two dozen donuts from her, but that her register had not shown the sale.  After refusing her request to view the "proof," plaintiff stated that she was "too upset" to respond to their questioning regarding the length of time that her alleged "shorting" of the cash drawer had been going on.

            She further stated that defendant's employees never told her that she had to answer their questions or face the loss of her job;  never directly threatened to fire her;  and made no threats of any kind to her during the interrogation.  She further testified that she at no time during the interrogation feared for her safety;  that she at no time refused to answer any question put to her;  that there was never a point in the interrogation that she said, "I want to leave" and was prevented from doing so;  and that she got up, left the room and went home when she first decided to do so.

            Plaintiff's written response to defendant's motion for summary judgment did not contradict the statements that she had made in her discovery deposition.  In her affidavit filed in support of her response to defendant's motion for summary judgment, plaintiff averred that (1) she left the baking room after she began to shake, and when she felt that she was becoming ill;  and (2) she was terminated from her employment by defendant.

            The trial court entered summary judgment for defendant.  Plaintiff appeals from that order. . . .

            . . .

            Plaintiff asserts that the trial court erred in granting defendant's motion for summary judgment as there exists a genuine issue of material fact.  She posits that she felt compelled to remain in the baking room so that she could protect her reputation by protesting her innocence to the two men, and that she left the room once she began to shake and feel ill. Additionally, she attributes her "serious emotional upset" to her feelings of intimidation that she contends were caused by:  James Cesario's sitting directly next to her during questioning, yellow pad and pencil in hand;  Ralph Bell's repeated statement that his briefcase contained proof of her guilt;  and his raised voice.

            The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of locomotion.  [ ]  Imprisonment has been defined as "any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go."  [ ]  In order for a false imprisonment to be present, there must be actual or legal intent to restrain.  [ ]

            Unlawful restraint may be effected by words alone, by acts alone or both [ ];  actual force is unnecessary to an action in false imprisonment.  [ ]  The Restatement of Torts specifies ways in which an action may bring about the confinement required as an element of false imprisonment, including (1) actual or apparent physical barriers;  (2) overpowering physical force, or by submission to physical force;  (3) threats of physical force;  (4) other duress;  and (5) asserted legal authority.  Restatement (Second) of Torts §§ 38-41 (1965).

            It is essential, however, that the confinement be against the plaintiff's will and if a person voluntarily consents to the confinement, there can be no false imprisonment.  [ ]  "Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft, . . . , is not enough;  nor, as in the case of assault, are threats for the future . . . .  Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress."  [ ]

            Plaintiff principally relies on the court's decision in Marcus v. Liebman (1978) [ ], for support of her position that summary judgment should not have been granted in the instant case.  In Marcus v. Liebman, the court extensively examined the concept that threats of a future action are not enough to constitute confinement.  [ ]  There, the defendant psychiatrist threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus court found that this was a present threat, constituting false imprisonment, as opposed to a threat of future action.  The court in Marcus concluded that the lower court had incorrectly directed a verdict for the defendant, and reversed and remanded the case for trial on the question of imprisonment.  The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, "[A]t the time the alleged threat was made plaintiff was already confined.  It was certainly reasonable for the plaintiff to believe that before her release [from the private hospital], commitment procedures could have been concluded."  [ ]

            Our analysis of the Marcus decision, as well as the other cases cited by plaintiff, does not support plaintiff's position.  All of these cases are easily distinguishable from the present case, as in each, either physical restraint or present threats of such were present.

            In the case at bar, we are confronted with plaintiff's testimony, given under oath, that she voluntarily accompanied James Cesario to the baking room;  that she stayed in the room in order to protect her reputation;  that she was never threatened with the loss of her job;  that she was never in fear of her safety;  and that at no time was she prevented from exiting the baking room.  Her affidavit, in which she averred that she left the baking room after she began to shake and when she felt that she was becoming ill, does not place into issue material facts which she had previously removed from contention.  [ ]  In her discovery deposition, given under oath, she stated that she "got up and left" when Ralph Bell asked her how long the cash register "shorting" had been going on.

            In the tort of false imprisonment, it is not enough for the plaintiff to have felt "compelled" to remain in the baking room in order to protect her reputation (see Prosser, Torts, § 11);  for the evidence must establish a restraint against the plaintiff's will, as where she yields to force, to the threat of force or the assertion of authority.  (See Restatement (Second) of Torts §§ 38-41 (1965).)  In the present case, our search of the record reveals no evidence that plaintiff yielded to constraint of a threat, express or implied, or to physical force of any kind.  Also, absent evidence that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or unlawfully detained by defendant's employees.  Finally, we find no merit to plaintiff's argument that defendant's affirmative defense constituted an admission of an unlawful restraint.

            For the reasons stated above, we conclude that the trial court properly granted defendant's motion for summary judgment, as there exists no question of material fact in the present case.


Mejda, P.J., and Sullivan, J., concur.


            1. In Lopez, what appear to be the elements in the prima facie case of false imprisonment?  What was the crux of the defendant's affirmative defense?

            2. Would summary judgment have been warranted if Bell and Cesario had told plaintiff that they weren't through questioning her when she decided to leave?  What if they said that she was free to leave but if she did so she was fired?

            3. Suppose that plaintiff was one of three employees who were called in and subjected to the reported interrogation because defendants didn't know which of them had been stealing from the register.  Would plaintiff's case remain as strong as in Lopez?

            4. The circumstances under which individuals have sought to restrain the freedom of movement of others defy generalization.  For a bizarre case, involving the leader of a religious sect who imposed sanctions against the plaintiff straying too far from the yacht where she was domiciled, see Whittaker v. Sandford, 85 A. 399 (Me. 1912).  On the overambitious efforts of two "high‑powered" car repossessors, see National Bond & Investment Co. v. Whithorn, 123 S.W.2d 263 (Ky. 1938).

            In Shen v. Leo A. Daly Co., ___ F.3d ___ (8th Cir. 2000), the Taiwanese government refused to permit plaintiff to leave the country until defendant, his former employer, satisfied certain obligations. The court held that confinement within a country did not amount to false imprisonment. The court observed that although “it is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within which to be falsely imprisoned.”

            5. False arrest cases constitute a special category.  If the imprisonment resulted from an arrest, the defendant must have been legally entitled to make the arrest.  Without a privilege, the defendant would be subject to liability for the particular form of false imprisonment known as false arrest.  The rules governing false arrest are discussed, in the context of a survey of the historical development of the false imprisonment tort, in Morris on Torts 399-414 (2d ed. 1980).

            6. Malicious prosecution.  False arrest cases do not reach claims in which, although the warrant and legal forms were proper, no basis existed for the arrest in the first place.  The defendant in the original case claims that the complainant began the prosecution without probable cause and for improper purposes.  This claim, called an action for malicious prosecution, permits the original defendant, after exoneration, to bring an action for expenses and humiliation sustained in the first case.  For an example of the interplay between false arrest and malicious prosecution in the shoplifting context, see Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339 (R.I.1994), upholding a claim that a store initiated criminal proceedings without probable cause.

            One of the crucial and much-litigated elements is the showing of a favorable termination to the malicious prosecution plaintiff in the earlier proceeding. See Smith-Hunter v. Harvey, 734 N.E.2d 750 (N.Y. 2000) (state no longer requires plaintiff to show innocence; any favorable termination “not inconsistent with innocence” will suffice).

            A more restricted form of this action lies in many states against persons who wrongfully file civil actions.  The history of these actions is traced in Note, Groundless Litigation and the Malicious Prosecution Debate:  A Historical Analysis, 88 Yale L.J. 1218 (1979).  For an interesting analysis of one state's development of the civil action, see Dupre, Case Comment, Yost v. Torok and Abusive Litigation:  A New Tort to Solve an Old Problem, 21 Ga.L.Rev. 429 (1986).

            Perhaps not surprisingly, some parties who have historically been disgruntled with the tort system are often plaintiffs in malicious prosecution cases.  The medical community's experiences with such actions are discussed in Yardley, Malicious Prosecution:  A Physician's Need for Reassessment, 60 Chi.‑Kent L.Rev. 317 (1984).  In City of Long Beach v. Bozek, 645 P.2d 137 (Cal. 1982), vacated and remanded 459 U.S. 1095, on remand 661 P.2d 1072 (Cal. 1983), the court held that the government could not bring a malicious prosecution action against an individual who had brought an unsuccessful action against the government.  The court's decision is criticized in Faber, City of Long Beach v. Bozek:  An Absolute Right to Sue the Government?, 71 Cal.L.Rev. 1258 (1983).

            7. Special Problems of Shoplifting.  The arrest of a suspected shoplifter presents special legal problems because a private citizen is usually the arrester.  The problem is significant economically because an estimated $30 billion worth of merchandise is lost to shoplifters each year and retailers annually spend large sums on efforts to avoid such losses.  See N.Y. Times, Dec. 4, 1994, § 3, at 13.  The losses are hard to itemize and are uninsurable.

            Most shoplifting incidents are petty larcenies.  In most states the misdemeanor of petty larceny covers theft of merchandise worth less than $50 or $100.  Thus, the shopkeeper's suspicion is usually that someone has committed a misdemeanor.  There is no time to get an officer or a warrant.  At common law, even a peace officer had no privilege to arrest for a misdemeanor committed in the officer's presence--unless the officer had a warrant--if the misdemeanor involved no breach of the peace.

            Even states that have liberalized the common law misdemeanor arrest rules for police officers, may require that the offense have occurred in the officer's presence--an unlikely event in shoplifting cases unless the officer is not in uniform.  For a "citizen's arrest," most states require that the misdemeanor have been committed in the citizen's presence and that the person arrested be guilty.  In these states, even if a suspected theft occurs in the presence of a store employee, the shopkeeper still arrests at his or her peril:  the arrested person must be proven guilty.  Even in more lenient states the shopkeeper must establish that a misdemeanor has indeed occurred.  Thus, if a suspect refuses to open packages or explain suspicious conduct, traditional law presents the shopkeeper with the choice of making a possibly unlawful citizen's arrest or letting the suspect go.  A similar dilemma is presented if the shopkeeper seeks only to retrieve goods without making an arrest:  if, in fact, the suspect has obtained the goods legally, the shopkeeper's reasonable belief that they were stolen will not protect against liability for battery if force is used to retrieve the goods.

            Nor can the shopkeeper solve the problem by seeking the assistance of a police officer.  The shopkeeper who detains the suspect against his or her will until a police officer arrives has in effect made an arrest.  If, instead, the shopkeeper chases a suspect down the street shouting, "Stop that man;  he is a thief!," and a police officer arrests him, the shopkeeper will be deemed to have instigated the arrest and will be subject to the standards of a citizen's arrest--though the police officer may be protected as having made the arrest on reasonable grounds.

            In 1960, New York enacted General Business Law § 218:

                        In any action for false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights, brought by any person by reason of having been detained on or in the immediate vicinity of the premises of a retail mercantile establishment for the purpose of investigation or questioning . . . as to the ownership of any merchandise, it shall be a defense to such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer . . . or by the owner of the retail mercantile establishment, his authorized employee or agent, and that such officer, owner, employee or agent had reasonable grounds to believe that the person so detained . . . was committing or attempting to commit larceny on such premises of such merchandise.  As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a retail mercantile establishment . . . and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise. . . .

Similar statutes exist in other states.  See, e.g., Calif.Penal Code § 490.5(f).  Is this a sound approach?  How does it compare with the common law approach in employee theft cases taken by the Lopez court?  Are there better alternatives? The New York statute was amended slightly in 1994 to allow the owner of a movie theatre to detain someone reasonably believed to be using a recording device.

            The New York statute's philosophy and operation are discussed in Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871 (N.Y. 1972)(protecting merchant who detained customer who had left store without paying for merchandise, but whose prosecution was dropped for lack of intent).  See generally, Note, Merchants' Responses to Shoplifting:  An Empirical Study, 28 Stan.L.Rev. 589 (1976).

            In 1991, New York adopted legislation allowing merchants to impose civil penalties not exceeding $500 on shoplifters who make restitution of the value of the stolen goods;  in return for agreeing to an informal settlement, the shoplifter gets no criminal record.  See generally, Woo, Most States Now Have Laws Permitting Stores to Impose Civil Fines on Shoplifters, Wall St.J., Sept. 9, 1992 at B1.  Is the statute likely to reduce the prospect of false imprisonment actions?

4. Intentional Infliction of Emotional Distress

            An intentional tort of recent origin is the intentional infliction of emotional distress.  Traditionally, courts were reluctant to recognize such an action for at least two reasons: the difficulties in assuring that actual harm had occurred--an issue that also applied to negligently inflicted emotional distress, p. ___, supra--and the belief that a certain amount of verbal abuse is a part of everyday life.  This reluctance was still discernible in a 1948 case in which the defendant loudly and repeatedly on a crowded street called the pregnant plaintiff a "god‑damned son of a bitch" and "a dirty crook."  Plaintiff alleged general physical harm resulting from the shock.  A split court refused relief on the ground that there is "no right to recover for bad manners" in the absence of an assault or defamation because of the "speculative" and "sentimental" nature of the injury and the difficulty of measuring damages.  Bartow v. Smith, 78 N.E.2d 735 (Ohio 1948), overruled by Yeager v. Local Union 20, 453 N.E.2d 666 (Ohio 1983).

            During this period other courts were granting relief not only for intentional infliction of emotional distress involving some physical injury, but also when it caused emotional distress alone--at least where the actor's behavior was particularly offensive.  In State Rubbish Collectors Ass'n v. Siliznoff, 240 P.2d 282 (Cal. 1952), the plaintiff sued for nonpayment of notes and the defendant's cross‑complaint asked that the notes be cancelled because of duress.  He also sought damages because plaintiff's members had coerced him to sign the notes to pay for a garbage collection contract he had signed with a customer--even though defendant did not belong to plaintiff association.  He testified that the encounter was so distressing that he became ill and vomited several times.  A jury award of both compensatory and punitive damages was upheld unanimously.  For the court, Justice Traynor first concluded that "a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well‑being, whether or not the threats are made under such circumstances as to constitute a technical assault."  Where mental suffering is a major element of the damages, it is anomalous to deny recovery on the ground that no physical injury followed:

                        There are persuasive arguments and analogies that support the recognition of a right to be free from serious, intentional, and unprivileged invasions of mental and emotional tranquility.  If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of [ ], and in the case of many torts, such as assault, battery, false imprisonment, and defamation, mental suffering will frequently constitute the principal element of damages.  [ ]  In cases where mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant's intentional misconduct fell short of producing some physical injury.

                        It may be contended that to allow recovery in the absence of physical injury will open the door to unfounded claims and a flood of litigation, and that the requirement that there be physical injury is necessary to insure that serious mental suffering actually occurred.  The jury is ordinarily in a better position, however, to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury.  From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant's conduct, but a difficult medical question is presented when it must be determined if emotional distress resulted in physical injury. . . .

            Does the rationale extend beyond threatening situations that don't quite measure up to assaults?  Consider the following case.

                                                       WOMACK V. ELDRIDGE

                                                     Supreme Court of Virginia, 1974.

                                                       215 Va. 338, 210 S.E.2d 145.

I'Anson, Chief Justice.

            Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie Eldridge, to recover compensatory and punitive damages for mental shock and distress allegedly caused by the defendant's willful, wanton, malicious, fraudulent and deceitful acts and conduct toward him.  The question of punitive damages was stricken by the trial court and the jury returned a verdict for the plaintiff in the amount of $45,000.  The trial court set aside the verdict . . . on the ground that there could be no recovery for emotional distress in the absence of "physical damage or other bodily harm."  We granted plaintiff a writ of error. . . .

            Plaintiff assigned numerous errors, but the controlling question is whether one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress absent any bodily injury.

            The evidence shows that defendant had been engaged in the business of investigating cases for attorneys for many years.  She was employed by Richard E. Seifert and his attorney to obtain a photograph of the plaintiff to be used as evidence in the trial of Seifert, who was charged with sexually molesting two young boys.  On May 27, 1970, about 8 a.m., defendant went to plaintiff's home and upon gaining admittance told him that she was a Mrs. Jackson from the newspaper and that she was writing an article on Skateland.  Defendant asked plaintiff, who was a coach at Skateland, if she could take a picture of him for publication with the article, and he readily consented.

            Shortly thereafter defendant delivered the photograph to Seifert's counsel while he was representing Seifert at his preliminary hearing.  Seifert's counsel showed plaintiff's photograph to the two young boys and asked if he was the one who molested them.  When they replied that he was not, counsel withdrew the photograph and put it in his briefcase.  However, the Commonwealth's Attorney then asked to see the photograph and requested additional information about the person shown in it.  Defendant was then called to the stand and she supplied the plaintiff's name and address.  Plaintiff's photograph in no way resembled Seifert, and the only excuse given by defendant for taking plaintiff's picture was that he was at Skateland when Seifert was arrested.  However, the offenses alleged against Seifert did not occur at Skateland.

            The Commonwealth's Attorney then directed a detective to go to plaintiff's home and bring him to court.  The detective told plaintiff that his photograph had been presented in court;  that the Commonwealth's Attorney wanted him to appear at the proceedings;  and that he could either appear voluntarily then or he would be summoned.  Plaintiff agreed to go voluntarily.  When called as a witness, plaintiff testified as to the circumstances under which defendant had obtained his photograph.  He also said that he had not molested any children and that he knew nothing about the charges against Seifert.

            A police officer questioned plaintiff several times thereafter.  Plaintiff was also summoned to appear as a witness before the grand jury but he was not called.  However, he was summoned to appear several times at Seifert's trial in the circuit court because of continuances of the cases.

            Plaintiff testified that he suffered great shock, distress and nervousness because of defendant's fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over to Seifert's attorney to be used in court.  He suffered great anxiety as to what people would think of him and feared that he would be accused of molesting the boys.  He had been unable to sleep while the matter was being investigated.  While testifying in the instant case he became emotional and incoherent.  Plaintiff's wife also testified that her husband experienced great shock and mental depression from the involvement.

            . . .

            The precise issue presented on this appeal has not been decided by this court.

            Courts from other jurisdictions are not in accord on whether there can be a recovery for emotional distress unaccompanied by physical injury.  However, most of the courts which have been presented with the question in recent years have held that there may be a recovery against one who by his extreme and outrageous conduct intentionally or recklessly causes another severe emotional distress. . . .

            The Restatement (Second) of Torts, § 46 at 71, provides:  "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."  In comment (i) to the Restatement it is expressly stated that this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct.

            . . .

            A great majority of cases allowing recovery for such a cause of action do so when the act was intentional and the wrongdoer desired the emotional distress or knew or should have known that it would likely result.  [ ]

            We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown:  One, the wrongdoer's conduct was intentional or reckless.  This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result.  Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.  This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved.  Three, there was a causal connection between the wrongdoer's conduct and the emotional distress.  Four, the emotional distress was severe.

            "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.  Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability."  Restatement (Second) of Torts, supra, at 77.

            In the case at bar, reasonable men may disagree as to whether defendant's conduct was extreme and outrageous and whether plaintiff's emotional distress was severe.  Thus, the questions presented were for a jury to determine.  A jury could conclude from the evidence presented that defendant willfully, recklessly, intentionally and deceitfully obtained plaintiff's photograph for the purpose of permitting her employers to use it as a defense in a criminal case without considering the effect it would have on the plaintiff.  There is nothing in the evidence that even suggests that plaintiff may have been involved in the child molesting cases.  The record shows that the only possible excuse for involving the plaintiff was that Seifert was arrested at the place where plaintiff was employed.  A reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases.  If the two boys had hesitated in answering that the man in the photograph was not the one who had molested them, it is evident that the finger of suspicion would have been pointed at the plaintiff.

            Defendant contended in her brief, and in oral argument before us . . . that the action of the Commonwealth's Attorney in causing plaintiff's name to be revealed was an intervening cause which absolved her of any liability.

            We will not consider those contentions because defendant did not assign cross‑error.  [ ]

            For the reasons stated, the judgment of the court below is reversed, the jury verdict reinstated, and final judgment hereby entered for the plaintiff.


            1. Suppose the evidence indicated that defendant had been hired without knowledge of the use to which the photograph would be put.  Would the Restatement standard of liability, as interpreted by the court, be satisfied?  Suppose, instead, defendant knew that it was to be used for purposes of identification in a criminal case--but nothing more.  Would the standard be satisfied?  Suppose she knew that the photo was to be used to incriminate plaintiff in a case in which he had no involvement--but she took the picture on the street.  Would plaintiff have had a colorable claim?

            2. If defendant had properly raised the claim that the Commonwealth Attorney was an "intervening cause which absolved her of any liability," should it have altered the disposition of the case?

            3. What result if plaintiff had claimed intentional infliction of emotional distress against Seifert's attorney?

            4. In Russo v. White, 400 S.E.2d 160 (Va. 1991), the court affirmed dismissal of the plaintiff's claim in a case in which she alleged that the defendant had made 340 "hang‑up" phone calls to her in a two month period after she refused to go out with him more than once.  The court emphasized that plaintiff had not suffered any physical injury as a result of the stress and that defendant had not spoken during the calls.  Asserting that the tort of intentional infliction, although recognized since Womack, is "not favored" in Virginia, the court quoted from Givelber, The Right to Minimum Social Decency and the Limits of Evenhandness:  Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 42-43 (1982), in arguing:

            [Intentional infliction of emotional distress] "differs from traditional intentional torts in an important respect:  it provides no clear definition of the prohibited conduct." . . .  Assault, battery, and false imprisonment "describe specific forms of behavior," but the term "outrageous" "does not objectively describe an act or series of acts;  rather, it represents an evaluation of behavior.  The concept thus fails to provide clear guidance either to those whose conduct it purports to regulate, or to those who must evaluate that conduct."

            Is the distinction drawn between the intentional infliction tort and other intentional torts persuasive?  In any event, how serious is the problem?  Is it addressed in the Womack opinion?  Reconsider Justice Traynor's position in Siliznoff, p. ___, supra.

            5. In an effort to make the standard of liability more concrete, Restatement (Second), § 46, comment d states "the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' "  Givelber, in response, comments that "[t]o suggest, as the Restatement does, that civil liability should turn on the resentments of the average member of the community appears to turn the passions of the moment into law."  He then notes that there would be serious constitutional difficulties in making "outrageous conduct" criminal.  Do his concerns undermine the legitimacy of the intentional infliction tort?

            6. Is there any room for the unusually sensitive plaintiff in these cases?

            7. Courts have permitted intentional infliction of emotional distress claims to lie in cases of racial insults and harassment.  See, e.g., Wiggs v. Courshon, 355 F.Supp. 206 (S.D.Fla.1973)(upholding verdict against waitress who hurled racial epithets at plaintiff when he inquired about his dinner order); Taylor v. Metzger, 706 A.2d 685 (N.J. 1998) (single racial slur in employment context may suffice). But see, e.g., Bradshaw v. Swagerty, 563 P.2d 511 (Kan.App. 1977)(plaintiff alleged that defendant, plaintiff's lawyer, hurled racial epithet during dispute over legal bill;  court denied recovery on ground that such epithets are "mere insults of the kind which must be tolerated in our roughened society").

            Section 46 claims are sometimes brought for cases of racial harassment in the workplace.  See, e.g. Alcorn v. Anbro Eng'g Inc., 468 P.2d 216 (Cal. 1970)(plaintiff, who was shop steward for the company's labor union, told his supervisor that a nonunion employee was not permitted to drive a truck from a job site;  supervisor responded with a string of racial insults and fired plaintiff;  court allowed plaintiff to proceed with his claim for intentional infliction of emotional distress).  Some courts have denied relief for harassment in the workplace on the ground that the employer's words and actions, while offensive, do not constitute "extreme and outrageous" conduct.  See, e.g., Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir.1986), affirmed in part, vacated in part, and remanded on different grounds 491 U.S. 164 (1989) (plaintiff's allegations that her supervisor gave her too much work, required her to sweep and dust, and commented that blacks are slower than whites, did not rise to level of "extreme and outrageous" conduct).  The tort system's response to verbal harassment in the workplace is discussed and criticized in Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 Stan.L.Rev. 1 (1988).

            The racial harassment issue has produced a good deal of commentary.  See Delgado, Words That Wound:  A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.‑C.L.L.Rev. 133 (1982);  Love, Discriminatory Speech and the Tort of Intentional Infliction of Emotional Distress, 47 Wash. & Lee L.Rev. 123 (1990).  The fine line between outrageous conduct and free expression has given rise to serious First Amendment concerns.  For a constitutional defense of the state's ability to provide relief to victims of racial harassment, see Lawrence, If He Hollers Let Him Go:  Regulating Racist Speech on Campus, 1990 Duke L.J. 431.  For a contrary view, see Note, Dear Professor Lawrence, You Missed the School Bus;  Brown v. Board of Education Supports Free Speech on Campus:  A Reply, 72 B.U.L.Rev. 953 (1992).

            For an argument that legislative developments have largely negated the need for common law protection, see Duffy, Intentional Infliction of Emotional Distress and Employment at Will:  The Case against Tortification of Labor and Employment Law, 74 B.U.L.Rev. 387 (1994).

            8. Racial Harassment--Statutory Claims.  Until recently, claims for workplace racial harassment were not actionable under 42 U.S.C. § 1981, an antidiscrimination statute passed during the Reconstruction era, which gives all persons equal rights "to make and enforce contracts."  In Patterson v. McLean Credit Union, referred to in the preceding note, the United States Supreme Court held that § 1981's protections were limited to issues of contract formation, and thus provided no relief for harassment directed at a worker during the course of his or her employment.  Plaintiffs retained the option of bringing an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;  however, Title VII's framework for resolution imposes several procedural obstacles not present in a § 1981 action.  Congress overruled the Court's interpretation of § 1981 in the Civil Rights Reform Act of 1991, Pub.L. 102--166, 105 Stat. 1071.  Thus, claims for racial harassment on the job are now actionable under § 1981.

            In Bolden v. PRC Inc., 43 F.3d 545 (10th Cir.1994), cert. denied 516 U.S. 826 (1995), plaintiff brought an action against his employer alleging racial discrimination under Title VII.  The court found that plaintiff, an African-American, was "a sensitive and serious person working in a shop filled with boorish churls," and "was met with hostility by many of his co‑workers."  Nonetheless, though his co‑workers made two racial remarks to plaintiff, those comments did not amount to the "steady barrage of opprobrious racial comments" that the court required before it found "harassment that was racial or stemmed from racial animus."  See Oppenheimer, Negligent Discrimination, 141 U.Pa.L.Rev. 899 (1993), articulating a negligence‑based theory of employer liability under Title VII.

            Under Title VII, total monetary awards for both compensatory and punitive damages are capped according to the size of the employer--reaching a combined maximum of $300,000 for employers with more than 500 employees.  By contrast, §1981 permits unlimited punitive damages.  In Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d 581 (5th Cir. 1998) rehearing en banc granted, opinion vacated by 169 F.3d 215 (5th Cir. 1999), opinion reinstated on rehearing by 182 F.3d 333 (5th Cir. 1999), the court addressed the issue of vicarious liability for punitive damages under §1981.  At the trial below, the jury found that a Wal-Mart supervisor discharged the plaintiff, a white female, because she was dating a black male in another department.  On appeal, the court found that there was sufficient evidence for the jury to find that the supervisor discharged plaintiff with “malice” or “reckless indifference” to her right to be free of race discrimination by association.  Relying on Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), involving vicarious liability for sexual harassment, the court held that Wal-Mart was vicariously liable for the supervisor’s malice or reckless indifference, and could be vicariously liable for punitive damages.

            9. Sexual Harassment--Statutory Claims.  The law dealing with sexual harassment in the workplace has been dynamic in recent years.  Courts have long held that employers violate Title VII if employment benefits are conditioned on sexual favors--so‑called "quid pro quo" cases.  In 1986, the Supreme Court broadened the Title VII standard to permit claims if discriminatory conduct created an "abusive working environment."  Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).  Appeals courts then split on what type of conduct was necessary to state a claim.  One court required serious injury to plaintiff's psychological well‑being. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.1986), cert. denied 481 U.S. 1041 (1987).  Applying a more expansive standard, another court held that the severity and pervasiveness of sexual harassment should be evaluated from the victim's perspective, Ellison v. Brady, 924 F.2d 872 (9th Cir.1991).  Since "a sex‑blind reasonable person standard tends to . . . systematically ignore the experiences of women," the court held that plaintiffs could state a prima facie case by alleging conduct that "a reasonable woman would consider sufficiently severe or pervasive" to create a hostile working environment.

            The Supreme Court rejected both standards in Harris v. Forklift Sys. Inc., 510 U. S. 75 (1993).  The male defendant had asked female plaintiff to remove coins from his pants pocket and repeatedly insulted her with comments such as "you're a dumb woman, what do you know?"  and, during plaintiff's negotiation of a deal with a customer, "what did you do, promise the guy . . . [sex] Saturday night?"  The Court denied that plaintiff had to show psychological injury to recover under Title VII but also declined to adopt a "reasonable woman" standard.  Plaintiff had to show conduct "that is . . . severe or pervasive enough to create an objectively hostile or abusive work environment . . . [which] would reasonably be perceived, and is perceived, as hostile or abusive."  The finder of fact was instructed to weigh all of the circumstances, including the frequency and severity of the harassment, whether the harassment involves humiliation or physical intimidation, and whether it interferes with the employee's work performance.

            The Court's standard was subsequently interpreted to mean that, in proving a hostile work environment, plaintiff can rely only on harassing conduct of which she was aware while employed. Hirase-Doi v. U.S. West Communications, 61 F.3d 777 (10th Cir.1995).

            In the wake of Forklift's caution that "merely offensive" conduct was not actionable, one court reversed a judgment against a defendant employer whose "sense of humor took final shape in adolescence," but who had neither threatened plaintiff nor solicited sex or a date with her.  Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir.1995).


            Plaintiffs may also state a cause of action under Title VII if they complain of sexual harassment and are subjected to retaliation.  In Dunning v. Simmons Airlines Inc., 62 F.3d 863 (7th Cir.1995), plaintiff complained of sexual harassment and was subsequently assigned involuntarily to unpaid maternity leave.  The court awarded plaintiff back pay and attorney fees for her retaliation claim though it made no finding on her sexual harassment claim.

            The question of whether same-sex sexual harassment is actionable under Title VII was addressed in Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75 (1998).  In that case, plaintiff Oncale, a male employee, brought a Title VII action alleging sexual harassment against his former employer and against his male supervisors and co-workers.  The alleged harassment occurred on an offshore oil platform in the Gulf of Mexico, where Oncale was employed as a roustabout on an eight-man crew.  On several occasions, Oncale was forcibly subjected to sex-related humiliation in the presence of the crew.  He was also physically assaulted in a sexual manner and threatened with rape.  After getting no remedial response from his supervisors, Oncale quit.  At his deposition, Oncale explained why he left his job: “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.” Oncale then filed suit alleging employment discrimination because of his sex.  The district court granted summary judgment for the defendants, holding that “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.”  On appeal, the Fifth Circuit affirmed. A unanimous Supreme Court reversed, holding that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. 

During the same term that it decided Oncale, the Supreme Court also decided a pair of cases that dealt with the issue of an employer’s vicarious liability under Title VII for sexual harassment engaged in by supervisory employees.  In both Ellerth and Faragher, supra, the Court held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” In addition, if the supervisor’s actions did not cause the employee any tangible job consequences, the employer could defend by showing that it had “exercised reasonable care to prevent and promptly correct any sexually harassing behavior” and that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

            The subject of sexual harassment has received extensive scholarly treatment.  See C. MacKinnon, Sexual Harassment of Working Women (1979);  Ehrenreich, Pluralist Myths and Powerless Men:  The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177 (1990);  Estrich, Sex at Work, 43 Stan.L.Rev. 813 (1991).  For commentary after the Court's Forklift decision, see Vorwerk, The Forgotten Interest Group:  Reforming Title VII to Address the Concerns of Workers While Eliminating Sexual Harassment, 48 Vand.L.Rev. 1019 (1995). 

            Violence Against Women Act.  In 1994, Congress enacted the Violence Against Women Act  (VAWA), creating a more direct route for suing for sexual harassment. Title III of the statute established a federal civil cause of action and remedy for victims of gender-motivated violence. 42 U.S.C. §13981.  In 1996, in the first lawsuit pursued under the act, a freshman at Virginia Polytechnic Institute sued two members of the university’s football team after they allegedly gang raped her.  In U.S. v. Morrison, 529 U.S. 598 (2000), the Supreme Court, 5-4, affirmed the en banc decision of the Fourth Circuit striking down the statute, and held that neither the commerce clause nor section five of the Fourteenth Amendment provided Congress with authority to enact the civil remedy provision of VAWA.  For highly critical commentary, see MacKinnon, Disputing Male Sovereignty: On U.S. v. Morrison, 114 Harv. L.Rev. 135 (2000). 

            Harassment in Schools.  In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992), in which a high school student alleged sexual harassment by one of her teachers, the Court implied a private right of action under Title IX of the Education Amendments of 1972, and concluded--in terms that may have implications for other civil rights laws--that "we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise."

            Building on Franklin, the Supreme Court articulated the standard governing such a private right of action under Title IX in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).  In that case, which involved a Title IX teacher-student sexual harassment claim brought by a high school student and her parents against a school district, the Court rejected the student’s claim and held that a school district may be liable for damages under Title IX only where it has actual notice of and is deliberately indifferent to acts of teacher-student sexual harassment.

A more difficult question is posed when a student (or parent) sues a school system for failing to protect her from harassment by other students.  The Supreme Court addressed this issue of student-on-student harassment in Davis v. Monroe Country Board of Education, 526 U.S. 629 (1999).  Plaintiff mother sued the school district and its officials under Title IX on the grounds that they failed to take action to stop a male student’s verbal and physical sexual harassment of her fifth grade daughter. The district court dismissed the Title IX claim on the grounds that "student-on-student," or peer, harassment provided no basis for a private cause of action under the statute.  Sitting en banc, the Eleventh Circuit affirmed. In a 5-4 decision, the Supreme Court reversed, holding that a school system may be sued for damages under Title IX in cases of student-on-student harassment as long as the “deliberate indifference” standard set forth in Gebser is met and the harassment is so severe that it effectively bars the victim's access to an educational opportunity or benefit.  Writing for the dissent, Justice Kennedy claimed that the majority violated the principles of federalism by allowing for “federal control of the discipline of our Nation’s schoolchildren [that] is contrary to our traditions and inconsistent with the sensible administration of our schools.”

            10. Credit Practices.  One type of situation that does recur frequently is the bill collector case.  The extent to which a creditor may utilize self‑help in attempting to collect a debt is debatable.  Surely a creditor may write a letter warning the alleged debtor that unless the amount claimed to be due is paid within a certain number of days, a suit will be filed.  Surely a creditor may not beat the alleged debtor to a pulp in efforts to collect money.  Where should the line be drawn?  Is it clear that some self‑help should be encouraged so that not every creditor who wants to collect money need initiate a lawsuit?  On the assumption that physical violence is never permissible, we may confine our speculation to the words used and the ways in which they are communicated.  Consider the following acts allegedly committed by a collection agency seeking repayment of a loan in Sherman v. Field Clinic, 392 N.E.2d 154 (Ill.App. 1979):

            . . . [t]elephoning plaintiffs' residence 10-20 times per day 3 days per week and 5-6 times per day 2 other days per week;  sending numerous letters to plaintiffs' residence;  making numerous telephone calls to Mr. Sherman at his place of business, though only Mrs. Sherman was responsible for any debts due the Clinic;  threatening to "embarrass" Mr. Sherman by contacting his employers and co‑workers;  threatening to garnish half of Mr. Sherman's wages;  frequently using profane and obscene language in calls to Mr. Sherman;  calling and speaking to Mrs. Sherman's 15 year old daughter, plaintiff Deborah Billy, in connection with the debt, though only Mrs. Sherman was responsible for any debts due the Clinic;  frequently making threats to the daughter that Mr. and Mrs. Sherman would be sent to jail for not paying the bill;  and frequently using abusive language in calls to Mrs. Sherman.

            In considering the propriety of each of the alleged acts if done alone, consider the following questions:  (1) What is the basic purpose of the defendant's conduct?  Does it "intend" to cause emotional harm?  Physical harm?  Should the courts focus on the harm that actually ensues, what the defendant intended to cause, or on what a reasonable defendant should have foreseen from its conduct?  (2) Should the identity of the defendant matter?  This case involves a finance company attempting to collect a loan it has made.  Often a suit involves a retail merchant who has sold items on credit and is attempting to collect the debt himself or, more likely today, with the help of a credit collection agency.  Larger retailers usually discount customer notes with a finance company that then becomes the creditor.  Should each of these parties have the same self‑help privilege?  (3) If the alleged debtor denies owing the claimed amount, should that situation be treated differently from one in which the debtor admits the debt but claims financial difficulties and wants to delay repayment?  (4) Should it matter if the creditor has had serious difficulties in locating the debtor?  (5) Might other distinctions prove useful here?

Intentional Interference with Family Relationships

            For centuries, courts have recognized two actions for intentional interference with the marital relation.  The action for "criminal conversation" involved "sexual intercourse of an outsider with husband or wife," and is the tort action based on adultery.  Historically, the action was available only to husbands because of the early property rights approach to the relationship between husband and wife.  In recent times some states have extended the action to wives as well.  But as some have expanded the action, about half the states have abolished the action entirely either legislatively or judicially.  In Neal v. Neal, 873 P.2d 871 (Idaho 1994), the court, after rejecting the historical justification for the tort, explained its decision to abolish it:

            Revenge, which may be a motive for bringing the cause of action, has no place in determining the legal rights between two parties.  Further, this type of suit may expose the defendant to the extortionate schemes of the plaintiff, since it could ruin the defendant's reputation.  Deterrence is not achieved; the nature of the activities underlying criminal conversation, that is sexual activity, are not such that the risk of damages would likely be a deterrent.  Finally, since the injuries suffered are intangible, damage awards are not governed by any true standards, making it more likely that they could result from passion or prejudice.

            The second tort, for "alienation of affections," applies to behavior by which outsiders through any means drive a wedge between family members.  See, e.g., Kirk v. Koch, 607 So.2d 1220 (Miss.1992) (jury could have found that defendant "directly and intentionally interfered" with plaintiff's marriage despite lack of showing of sexual relations or affectionate conduct between defendant and plaintiff's spouse).  Again, many states have abolished this action, through judicial decision or by the enactment of "heart balm" statutes that prohibit suits based on alienation grounds.  In many states, these statutes also preclude actions based upon breach of promise to marry and upon seduction.           

            In Veeder v. Kennedy, 589 N.W.2d 610 (S.D. 1999), the court noted that 34 states had abandoned the alienation action by statute, but that only five had done so by judicial decision.  In this case, the court again reviewed arguments against the action but retained it, affirming a judgment for compensatory and punitive damages totaling $265,000.  The case involved a relationship between defendant bank manager and a married employee.  The majority rejected arguments made by earlier judges that the "underlying rationale for alienation suits, that is, the preservation of the marriage, is ludicrous.  And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an alienation suit."  The majority in Veeder declined to abolish the action, partly because it found legislative support for the action and thought that any abolition should come from the legislature, but also because it found value in the action, quoting a member of the court in a 1981 case:

            Finally, because we happen to be living in a period of loose morals and frequent extramarital involvements is no reason for a court to put its stamp of approval on this conduct; and I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.

            See also Bland v. Hill, 735 So.2d 414 (Miss. 1999), in which a state that had already abolished criminal conversation retained the alienation action.  The dissenters observed:

                        Over the years, courts have increasingly been required to delve into matters which are not ideally suits for judicial intervention. . . .  As it applies to two spouses, the judicial system cannot be called upon to make one spouse love another.  When the marriage breaks down, it is usually the fault of both spouses.

                        Hence, this Court is called upon under an archaic cause of action to put a price tag on the heart (love) by analyzing the love between two spouses . . . together with a third party and that party's role in allegedly breaking up the marriage that for all practical purposes was already heading for a divorce court.

The dissenters also noted that as early as 1935 states were abolishing this action "in response to a wide public sentiment . . . that such actions had been so abused, made the means of exploitation and blackmail, that the existence of such causes of action had become of greater injury than of benefit to society."

            Intentional Interference with Custodial Relationships.  At the same time that actions for criminal conversation and alienation are finding favor in fewer courts, other actions are finding new support.  In Stone v. Wall, 734 So.2d 1038 (Fla.1999), the court recognized an action for intentional interference with the parent-child relationship.  The plaintiff father who had been given custody of his child sued members of the family of his deceased ex-wife for having failed to return the child from a visit and then concealing the child. 

            The court began by noting that an ancient action gave the "father an action for the abduction of his heir."  Though the action was extended to the kidnapping of any child, it was not given to mothers because they had no property right in their children.  In the modern day the court thought any parent or person with custodial rights should have such an action against those who interfere with such rights.  The court noted that most states recognize the claim.  The court observed that states widely recognized claims for "intentional interference with business relationships . . . because 'economic relations are entitled to freedom from unreasonable interference.' [ ]  We find that the parental custody relationship should be entitled to no less legally recognized protection from unreasonable interference."

            The following case explores the relationship between these torts and intentional infliction of emotional distress.



Supreme Court of Virginia, 2000.

530 S.E.2d 902.

 KEENAN, Justice.

In this appeal, we consider whether Code § 8.01-220 bars a plaintiff's action against his former wife's paramour for intentional infliction of emotional distress, when the conduct alleged would support an action for alienation of affection, a cause of action specifically prohibited by the statute.

Glenn R. McDermott [sued] William Reynolds for intentional infliction of emotional distress based on Reynolds' alleged conduct in maintaining an adulterous relationship with McDermott's wife. Reynolds [moved to dismiss], asserting that McDermott's action was "essentially one for alienation of affection" and, thus, was barred by Code § 8.01-220.

            [The trial judge granted the motion to dismiss.]

On appeal, McDermott argues that his action for intentional infliction of emotional distress is separate and distinct from an action for alienation of affection. He contends that Code § 8.01-220 does not prohibit his action simply because the conduct on which his action is based has "overtones" of alienation of affection. McDermott also asserts that his damages arose from Reynolds' intentional infliction of emotional distress, not from Reynolds' alienation of the affection of McDermott's wife. We disagree with McDermott's arguments.

[Defendant’s wife informed plaintiff that she had just followed defendant and plaintiff’s wife, Fiordeliza, to a motel.] McDermott had been married to Flordeliza for 18 years and they had three children. McDermott confronted Reynolds about his relationship with Flordeliza and demanded that Reynolds cease the adulterous relationship. Instead of ending the relationship, Reynolds "flaunted it outwardly."

Reynolds' conduct caused severe embarrassment and humiliation to McDermott and his three children. McDermott also alleged that by refusing his requests and continuing to "flaunt" the relationship, Reynolds acted maliciously and with the intent to cause McDermott severe emotional distress. As a result of his emotional distress, McDermott experienced sleeplessness, loss of weight, and interference with the performance of his duties as a physician. Further, Reynolds' conduct caused the "break up" of McDermott's family and required McDermott and his three children to seek counseling, resulting in financial losses to McDermott.

We first recognized the tort of intentional infliction of emotional distress in Womack v. Eldridge, [ ]. We held that a plaintiff may recover damages for emotional distress resulting from a non-tactile tort if he alleges and proves by clear and convincing evidence that: (1) the wrongdoer's conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the resulting distress is severe. [ ]

The statute at issue in this appeal, Code § 8.01-220, provides:

A. Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversion upon which a cause of action arose or occurred on or after June 28, 1968.

            B. No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974.

The fact that Code § 8.01-220 does not contain a reference to the tort of intentional infliction of emotional distress does not affect our analysis, because that tort encompasses many types of conduct unrelated to the causes of action specified in the statute. We conclude that when the General Assembly enacted Code § 8.01-220, it manifested its intent to abolish common law actions seeking damages for a particular type of conduct, regardless of the name that a plaintiff assigns to that conduct. Therefore, in determining whether an action is barred by Code § 8.01-220, we consider the conduct alleged in the plaintiff's motion for judgment.

The essential basis of McDermott's claim is that the defendant had an adulterous relationship with McDermott's wife, which he continued in an open and notorious manner after being confronted by McDermott. This alleged conduct is precisely the type of conduct that the General Assembly intended to exclude from civil liability when it enacted Code § 8.01-220. Thus, the fact that McDermott labels his claim as intentional infliction of emotional distress and recites the elements of that tort in support of his action does not shield the action from the statutory bar. We must consider the nature of the cause of action pleaded, not merely its form, in determining whether a plaintiff has stated a cause of action that will permit recovery of damages for the conduct alleged. [ ]

We note that our conclusion is in accord with the decisions of a majority of jurisdictions that have considered claims for intentional infliction of emotional distress with reference to statutes substantially similar to Code § 8.01-220. The rationale underlying these decisions of our sister states, like our decision here, is based on the legislative intent manifested in these statutes to remove conduct of this nature from civil liability [citing cases from four states].

Our decision today reflects a disagreement with the analysis and result reached in Raftery v. Scott, 756 F.2d 335 (4th Cir.1985). There, the United States Court of Appeals for the Fourth Circuit [under Virginia law] considered an action in which a divorced spouse alleged that his former wife intentionally inflicted emotional distress on him by attempting to destroy his relationship with his son. The former wife sought dismissal of the action, contending that it essentially alleged that she caused an alienation of the child's affection for his father, and that such actions are barred by Code § 8.01-220. [ ]


The Court of Appeals held that the facts of the case independently supported a claim for intentional infliction of emotional distress, although the conduct alleged had "overtones of affection alienation." [ ] The Court stated that the two torts have different characteristics and require different proof, citing as an example the requirement for intentional infliction of emotional distress that the infliction be intentional and something more than a simple aggravation. [ ] Thus, the Court of Appeals focused its analysis on the elements of the two torts, rather than on the conduct asserted by the plaintiff.

In contrast, we have based our analysis on a defendant's alleged conduct because that methodology allows us to consider the legislative intent manifested in Code § 8.01-220. By using this analysis, we effectuate that intent and foreclose a revival of the abolished tort of alienation of affection asserted in the guise of an action for intentional infliction of emotional distress.

For these reasons, we will affirm the trial court's judgment.

[All the justices concurred.]

Notes and Questions

            1. Do the allegations make out a claim for intentional infliction of emotional distress?

            2. Is the court’s approach to deciding whether the emotional distress action survives the statute superior to the approach taken by the Raftery court?

            3. Does the outcome of the main case persuade you to rethink your initial reactions to the tort actions that have been abolished?

            4. In C.M. v. J.M. v. W.P., 726 A.2d 998 (N.J.Ch. 1999), J.M. (plaintiff) had been led by his wife (C.M.) to believe that children born during their marriage were his own. When he found out that they were fathered by defendant (W.P.) during “an ongoing affair,” he sued for intentional infliction of emotional distress. Defendant moved to dismiss on the ground that the claim was barred by the state’s abolition of the actions for alienation of affections and criminal conversation. The court denied the motion because it understood the gist of the complaint to be “not being informed of the paternity of children that J.M. fathered as if his own.  J.M., in opposition to W.P.s' motion to dismiss the third‑party complaint, contends that the ‘extreme and outrageous’ conduct was not the extramarital affair between C.M. and W.P., but its ultimate effect upon the him and the children.”

            The court understood that J.M. was “not seeking recovery for the loss of C.M.'s ‘bounty, love, and affection.’  Quite differently, J.M. looks to recover for emotional distress resulting from the dissolution of his relationship with children he raised as his own. He seeks damages for his splintered relationship with his alleged children, not for his dissolved martial relationship.   Therefore J.M.'s claim is not for ‘alienation of affections,’ and thus is not barred by the ‘Heart Balm’ Act." The court continued:

            Many of our sister states agree with [a case in New Jersey] that adultery alone, in the eyes of society, is not outrageous in and of itself.  See, e.g., Strauss v. Cilek, 418 N.W.2d 378 (Iowa Ct.App.1987) (wife's tryst with husband's friend, although promiscuous, was not outrageous);  Whittington v. Whittington, 766 S.W.2d 73 (Ky.Ct.App.1989) (fraud and adultery did not reach the status of outrageous);  Poston v. Poston, 436 S.E.2d 854, 856 (N.C.App. 1993) (wife who "repeatedly exposed her mind and spirit and body to the sexual advances." of a man other than her spouse was not outrageous).

            Some states do, however, find that an "outrage" does surface when an affair leads to the birth of a child held out to be another's. [ ]

                        . . .

            In the instant matter, it is conceded that the extra‑marital affair started before, continued during, and transpired after the birth of both children. Much as in [ ], C.M. and W.P. behaved recklessly, in deliberate disregard of the high degree of probability that their affair would be uncovered after each birth, by maintaining their sexual relationship, and by concealing, from J.M., the true paternity of the children. [ ] Biologically speaking, so long as W.P. engaged in sexual intercourse with C.M., neither can deny that a very probable result of the copulation was child birth.   It is illogical to argue that both W.P. and C.M. engaged in acts of sexual intercourse, prior to the conception of R.P. and K.E., yet are not both connected to the matter as a proximate cause of their births.   But for W.P.s' sexual participation in this extramarital affair with C.M., these two children would not have been born.   Furthermore, W.P. abandoned any obligation to the children, while J.M. helped his wife feed, raise, fund, educate and nurture children that were not his own.   This is indeed "outrageous" and, in the eyes of this court, W.P. is as accountable for these children as C.M., and thus should also bear responsibility for the consequences.

            Keeping the duration of the affair a secret from J.M., as well as suppressing the true paternity of R.P. for almost three years, including four months after the paternity of K.E. had been disclosed, without regard to the high degree of probable harm to defendant, would indeed lead the average member of the community to exclaim "Outrageous!"   Therefore, this court concludes that the allegations of the third‑party complaint are severe enough to state a cause of action for emotional distress.

            On the common law claim for intentional infliction of emotional distress, do the facts in J.M.’s case suffice?