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Bozman v. Bozman9/4/2002
, 281 Md. 560, 566 (1977). The Court in Harris characterized as "troublesome" the determination of whether a defendant's conduct is "extreme and outrageous" in the context of intentional infliction of emotional distress. Id. at 567. Liability consistently has been found, however, only "`where the conduct has been 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.'" Id. (quoting Restatement (Second) of Torts, ch. 2, Emotional Distress, ยง 46 (1965)).
The Court in Harris did not need to decide whether the defendant's conduct at issue--repeatedly mimicking an employee's stutter--was extreme or outrageous, 281 Md. at 570, because the evidence was insufficient to establish the separate element of the tort that the wrongful conduct caused severe emotional distress, id. at 572-73. Since then, however, the Court has held that " ne who knowingly engages in conduct that is highly likely to infect another with an incurable disease . . . has committed extreme and outrageous conduct." B.N. v. K.K., 312 Md. 135, 146 (1988). Likewise, "a psychologist who is retained to improve a marital relationship [and then] facilitate a romantic, sexual relationship" with the spouse of a patient has committed conduct that is outrageous. Figueiredo-Torres v. Nickel, 321 Md. 642, 654 (1991).
Measured against Lusby, and the related cases of B.N. and Figueiredo-Torres, and Eagan and Mahnke, the actions of appellee in the case at bar are not outrageous. We therefore hold that a spouse's filing of criminal charges that are ultimately dismissed does not come within the Lusby exception to the doctrine of inter-spousal immunity. The doctrine shielded appellee from suit by appellant so long as the parties were married at the times relevant to the cause of action. Appellant does not argue that the parties were not married at the relevant times. The court was thus correct in dismissing Count I of the second amended complaint.
In so holding, we repeat that we do not underestimate the distress, embarrassment, and inconvenience to appellant that appellee's filing of the criminal charges occasioned. Moreover, we disapprove of any individual's invoking, without cause, the heavy machinery of the criminal justice system for reasons of personal animus. By the same token, we are mindful that " ublic policy requires that citizens be free to resort to the courts to resolve grievances without fear that their opponent will retaliate with a . . . lawsuit against them." One Thousand Fleet Ltd. P'ship v. Guerriero, 346 Md. 29, 37 (1997).
II.
In arguing that the court erred in dismissing Count II of the second amended complaint, appellant shifts his argument from an attack upon the doctrine's applicability to the tort of malicious prosecution, to an attack upon appellee's failure to establish the condition precedent for its application, namely, that the parties were married when the cause of action arose. We agree with appellant's contention, and hold that the court erred in dismissing Count II on the ground of inter-spousal immunity.
" cause of action is said to have arisen `when facts exist to support each element.'" Heron v. Strader, 361 Md. 258, 264 (2000) (quoting Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 121 (1992)). The elements of the tort of malicious prosecution are: "(1) the defendant instituted a criminal proceeding against the plaintiff; (2) the criminal proceeding was resolved in the plaintiff's favor; (3) the defendant did not have probable cause to institute the proceeding; and (4) the defendant acted with malice or a primary purpose other then
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