Dunlea v. Dappen9/19/1996
iated by Dunlea; (3) the statement was made to Dunlea only once; and (4) there was no further contact between Dappen and Dunlea following the single phone call. In her opposition to Dappen's motion, Dunlea failed to establish that there was a genuine issue of material fact; she attached only Dappen's responses to a request for admissions in which Dappen admitted that (1) he made the statement to Jacobs, and (2) "Defendant Howard Dappen states when[,] in August of 1991, Sandra Dunlea called and asked, Defendant Dappen told her he would not forgive her for making accusations." Therefore, summary judgment with respect to count II of Dunlea's complaint would be proper if, on the undisputed facts, Dappen was entitled to judgment as a matter of law.
In Marshall v. University of Hawaii, 9 Haw. App. 21, 38, 821 P.2d 937, 947 (1991), the Intermediate Court of Appeals enumerated the elements of the tort of intentional infliction of emotional distress: "(1) that the act allegedly causing the harm was intentional; (2) that the act was unreasonable; and (3) that the actor should have recognized that the act was likely to result in illness." Id. (citation omitted). More recently, in Ross, this court explained that
recovery for intentional infliction of emotional distress is permitted only if the alleged tortfeasor's acts were "unreasonable." Calleon v. Miyagi, 76 Hawai'i 310, 321 n.7, 876 P.2d 1278, 1289[, n.7] (Sup. 1994), as amended, 76 Hawai'i 453, 879 P.2d 558 (Sep. 1994); Chedester v. Stecker, 64 Haw. 464, 467, 643 P.2d 532, 535 (1982); Marshall v. University of Hawaii, 9 Haw. App. 21, 38, 821 P.2d 937, 947 (1991). An act is "unreasonable" if it is "'without just cause or excuse and beyond all bounds of decency[.]'" Chedester, 64 Haw. at 468, 643 P.2d at 535 (quoting Fraser v. Morrison, 39 Haw. 370, 375 (1952)). In other words, the act complained of must be "outrageous," as that term is employed in the Restatement (Second) of Torts § 46 (1965). Id.
"The question whether the actions of the alleged tortfeasor are unreasonable or outrageous is for the court in the first instance, although where reasonable persons may differ on that question it should be left to the jury." Wong v. Panis, 7 Haw. App. 414, 421, 772 P.2d 695, 700 (1989) (citing Restatement (Second) of Torts § 46 comment h).
Ross, 76 Hawai'i at 465, 879 P.2d at 1048 (footnote omitted). We noted that,
in explaining the type of "outrageous" conduct that makes a claim for intentional infliction of emotional distress actionable, the Restatement (Second) of Torts states:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal , or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, 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!"
Restatement (Second) of Torts § 46 co
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