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Bevan v. Fix3/21/2002
outrageous conduct directed toward her mother to preclude summary judgment against her on this element. Likewise, Steven testified in deposition among other things, "I remember when Bill Fix choked my mom by a wall." The children's statements, coupled with Jones' affidavit, are sufficient to preclude summary judgment for Fix on the "presence" element of the children's claims.
[ ] As to the fifth element of Brittany and Steven's claims for intentional infliction of emotional distress that they sustained severe emotional distress as a result of that conduct, appellee's brief makes many factual arguments regarding the children's memories of the events, the manner in which they describe and attribute their distress, the duration and nature of their counseling, etcetera; however, we think these factual arguments are better addressed by a jury than by this appellate court. In numerous cases we have approved the following language found in Restatement § 46 cmt. j defining severe emotional distress. See Kanzler v. Renner, 937 P.2d at 1341 (quoting cmt. j, Restatement, Second, Torts § 46); Davis v. Consolidated Oil & Gas, Inc., 802 P.2d 840, 849 (Wyo. 1990); Leithead, 721 P.2d at 1066-67.
Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed. For example, the mere recital of the facts in Illustration 1 above goes far to prove that the claim is not fictitious. . . .
Addressing the court's gate-keeping function in this regard, comment j continues:
It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.
[ ] We conclude sufficient evidence of emotional distress was presented to preclude summary judgment for appellee. The facts alleging the children's changes in behavior, their own deposition testimony, the affidavit of Jones, and the deposition testimony of the two counselors and psychologist who have subsequently interviewed and diagnosed the children's disorders are more than sufficient to give rise to a genuine issue of material fact on the issue of Brittany and Steven's severe emotional distress.
[ ] Lastly, we must consider whether the record discloses facts sufficient to allow a jury to reasonably conclude that Fix "intentionally" or "recklessly" caused severe emotional distress to Brittany and Steven. Restatement cmt. i provides:
Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.
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