The Tort of Outrage and Some Objectivity about Subjectivity

Abstract

The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort, also known as intentional infliction of emotional distress. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort at the time. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.”

This Article challenges that conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that when the target of a threat can execute a biologically reflexive fight or flight response, he experiences benign, adaptive, stress. But when an impediment blocks the target from following through on that biologically compelled response, he experiences physiologically maladaptive distress. Consequently, the behavioral factor that separates ordinary aggression from outrageous aggression is the defendant’s use of threats coupled with awareness that the plaintiff cannot react prosocially. While many impediments to response are physical facts known to the entire community, others are social facts of which some community segments may claim ignorance. Thus, when plaintiff paralysis results from defendant exploitation of physical impediments recognized by all, jurors can stigmatize the defendant without exercising any subjective judgments about how “real” the impediment was. But when plaintiff paralysis is claimed to result from social conditions – particularly in the case of women and people of color who have reason to believe that a prosocial response will draw retribution – jurors who assign liability are expressing a belief that the plaintiff’s experience was “real” despite the defendant’s claimed unawareness of it. In other words, the tort’s “objective” version assigns liability based on physical facts, while its “subjective” version assigns liability based on an acceptance of social facts that have been the subject of some dispute.

In its concluding section, the Article investigates how often jury verdicts for plaintiffs require endorsement of the plaintiff’s worldview and rejection of the defendant’s claimed ignorance. Specifically, it examines jury verdicts in five states over several decades to determine the relative frequency of “objective” and “subjective” liability assignments. In three-fifths of the cases studied, outrage liability arose from behavior that was objectively understood by both the defendant and the community at large to be antisocial, and thus did not require the jury to determine whose version of “reality” to accept. However, in a third of cases, juries assigned liability where women or people of color felt paralyzed by experiences of social hierarchy the defendant implicitly claimed not to have recognized, meaning the jury accepted as real the plaintiff’s experience of the world. The Article ultimately argues this small sector of outrage liability is in keeping with the best tort tradition. It foregrounds information about life experiences that are often excluded from mainstream narratives. Further, it gives institutional weight to those experiences, and by doing so deprives future defendants of a safe harbor for exploitation grounded in claims of social naivete.

Keywords: legal theory, intentional infliction of emotional distress, tort theory, new private law, new doctrinalism, neuroscience, psychology, jury studies, legal history, legal realism, law and gender, law and race