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Jack Yutz wants your firm to file suit against Henry Schmuck for emotional injuries resulting from Schmuck's actions at a local restaurant. Investigation indicates that Yutz and his wife were having dinner at "The Steak Pit" and, upon receiving their order, Jack complained to the waiter that the prime rib was overdone and dry, demanding a new order as originally requested (i.e., medium rare). Moments later, the restaurant owner, Schmuck, approached Yutz and, while shaking his butcher knife in Yutz's face, yelled at Yutz, "You have some nerve, you moron, complaining about my cooking! I'm gonna cut your rib out and cook it medium rare!" Though Yutz admits not being afraid when Schmuck was yelling, he still suffered sleepless nights and is in therapy for delayed stress syndrome. What tort claims and defenses exist?  

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Yutz's best options here are claims for assault and/or intentional infliction of emotional distress (though the latter is not recognized in all US jurisdictions and is severely limited in others).

First, assault, as a tort, involves intentionally putting another person in apprehension of imminent battery (unwanted touching, which may or...

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Yutz's best options here are claims for assault and/or intentional infliction of emotional distress (though the latter is not recognized in all US jurisdictions and is severely limited in others).

First, assault, as a tort, involves intentionally putting another person in apprehension of imminent battery (unwanted touching, which may or may not cause physical injury).

In most jurisdictions, the tort of assault does not require the plaintiff (the person being assaulted) to actually feel fear that they will be injured, only that they will imminently be touched/contacted by the other person (or a weapon they wield) in a way they did not consent to.

To prevail on a claim for assault, Yutz will need to prove

  • that Schmuck intended to make Yutz believe or expect that he was about to be cut or stabbed with the butcher knife, AND
  • that Yutz actually did believe, even for an instant, that he might get cut or stabbed.

Here, Yutz's therapist might prove a useful witness, as the therapist can discuss how delayed stress syndrome or insomnia may relate to apprehension of imminent danger as well as how feeling fear in the moment may not be required for the brain to apprehend imminent danger.

But what if Yutz never did believe, even for an instant, that Schmuck would touch him with the knife or anything else?

The tort of intentional infliction of emotional distress (IIED), or the "tort of outrage," was developed to address situations that didn't meet the definition of assault because there was no apprehension of contact.

To prevail on an IIED claim, Yutz will need to prove that:

  1. Schmuck acted intentionally or recklessly,
  2. Schmuck's behavior was "extreme" or "outrageous,"
  3. Schmuck's behavior caused Yutz emotional distress.

Yutz is likely to be able to show that Schmuck's behavior caused him emotional distress. Again, evidence from his therapist will be helpful in proving the emotional distress element of the claim.

Likewise, Yutz will probably be able to show that Schmuck acted intentionally or recklessly. Schmuck's words as he waved the knife at Yutz indicate that Schmuck was oriented to the situation: he knew who and where he was, he knew what Yutz had said, and he knew the butcher knife would seem threatening. As the owner of a restaurant, Schmuck is also likely to know that butcher knives are dangerous, especially when waved around.

That leaves the second element: proving that Schmuck's reaction was "extreme" or "outrageous." This is the toughest element to prove in most IIED claims, and it's likely to be the toughest one here.

While courts have differed on how to define "extreme" or "outrageous," many have adopted the definition in the Second Restatement of Torts: "extreme" or "outrageous" conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

Here, Yutz will need to prove that a restaurant owner waving a butcher knife in a patron's face while screaming insults "go[es] beyond all possible bounds of decency" and is "utterly intolerable in a civilized community."

Therefore, Schmuck's best defense to an IIED claim is that while his behavior was improper, it was not so outrageous as to support liability for IIED. Schmuck could also defend against both an IIED claim and an assault claim by arguing that he did not intend to cause Yutz emotional distress. For instance, Schmuck might argue that one of his waiters had told him to put on the butcher knife act as part of a joke, and Schmuck had done so assuming Yutz was in on the joke.

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