Hetfeld v. Bostwick

901 P.2d 986, 136 Or. App. 305, 1995 Ore. App. LEXIS 1178
CourtCourt of Appeals of Oregon
DecidedSeptember 6, 1995
Docket9401-00047; CA A84546
StatusPublished
Cited by9 cases

This text of 901 P.2d 986 (Hetfeld v. Bostwick) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hetfeld v. Bostwick, 901 P.2d 986, 136 Or. App. 305, 1995 Ore. App. LEXIS 1178 (Or. Ct. App. 1995).

Opinions

[307]*307RIGGS, P. J.

Plaintiff appeals from the trial court’s dismissal of his claim for intentional infliction of emotional distress filed against his former wife, Adele Bostwick, and her present husband, Bostwick, on the ground that the complaint fails to state ultimate facts sufficient to constitute a claim. ORCP 21. We view the pleadings in the light most favorable to plaintiff and affirm.

The complaint alleges that, with the purpose of causing plaintiff “emotional distress, anguish and psychological injury,” defendants embarked on a course of conduct aimed at estranging him from his children: they unlawfully withheld visitation, in contempt of court, by making the children unavailable;1 intentionally disparaged the character and reputation of plaintiff by encouraging the children to call plaintiff by his first name, by assaulting plaintiff in the presence of the children and by using inappropriate language in the presence of the children; encouraged the children to prematurely terminate their visitation with plaintiff; planned activities for the children so as to cause conflicts with plaintiffs scheduled or proposed visitations; caused the children to be known to others in their school and community by the surname of Bostwick rather than Hetfeld; and encouraged the children to identify with Bostwick as their father rather than with plaintiff.

The complaint alleges these further acts by defendant Adele Bostwick: stalking and harassing a female friend of plaintiffs with the intention of intimidating her and preventing her from testifying in court on plaintiffs behalf; soliciting and fermenting discord in plaintiffs relationship with his second wife by ‘ ‘recruiting her to file for modification of visitation to correspond with her own motion seeking to terminate plaintiffs visitation rights”; and hiring a lawyer for the children and making them privy to legal filings, correspondence and proceedings relevant to her effort to terminate and limit plaintiffs visitation with the children.

[308]*308As a result of the alleged conduct, plaintiff claims to have suffered emotional distress and injury due to the damage to his relationship with his children, as well as economic damages necessitated by medical costs and attorney fees.

In order to state a claim for intentional infliction of emotional distress, the plaintiff must allege ultimate facts which, if true, show that the defendant intended to inflict severe mental or emotional distress on the plaintiff, that the defendant’s actions consisted of “some extraordinary transgression of the bounds of socially tolerable conduct” or exceeded “any reasonable limit of social toleration, ’ ’ Patton v. J. C. Penney Co., 301 Or 117, 122, 719 P2d 854 (1986), and that the defendant’s conduct did in fact cause the plaintiff to suffer severe emotional distress. As the court said in Brewer v. Erwin, 287 Or 435, 457, 600 P2d 398 (1979):

“[The] essence [of the tort] is that the infliction of actual mental suffering on the plaintiff is the deliberate purpose of defendant’s conduct, although that conduct may of course have an ulterior objective * * *. The additional requirement that defendant’s means of inflicting injury must have been extraordinary is explained as necessary, first, to distinguish actionable conduct from the insults, ill temper, and offensive jokes that persons are expected to endure under contemporary standards of behavior, and second, to provide a setting of objective reality for a claim of harm that otherwise rests only on evidence of the plaintiffs subjective reaction divorced from physiological or other tangible injury.” (Emphasis supplied.)

The tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life. The conduct is an “extraordinary” transgression if it is “so offensive as to be outrageous,” Hall v. The May Dept. Stores, 292 Or 131, 137, 637 P2d 126 (1981), or “outrageous in the extreme.” Patton, 301 Or at 124.

The focus of our inquiry, as framed by the parties’ arguments, is on whether, in the context of the parties’ familial relationship and legal history, a jury should be permitted to find that the alleged means of inflicting injury was “outrageous in the extreme. ’ ’ Because the case is before us on the sufficiency of the complaint, we assume the truth of all pleaded allegations and of any facts that might conceivably be [309]*309introduced as proof of those allegations. Brennan v. City of Eugene, 285 Or 401, 591 P2d 719 (1979).

Defendants contend, and the trial court apparently agreed, that although the conduct pleaded is “admittedly contentious,” the complaint fails to state a claim because, as a matter of law, the means of inflicting injury is not an extraordinary transgression of the bounds of socially tolerable behavior. The specific allegations, defendants contend, are either too vague to support the claim or are “unfortunately, actions which frequently occur in antagonistic divorce and visitation cases.” In other words, the particular types of behavior alleged are common between individuals involved in a contumelious divorce, thus, reprehensible as those behaviors may be, they are not “extraordinary.” Further, defendants argue, the proper forum for relief for plaintiff is in the dissolution court pursuant to ORS chapter 107, not a tort claim.

Plaintiff contends that the elements of the tort of intentional infliction of emotional distress have been adequately pleaded and that, if the allegations are vague, they may be corrected by an amended pleading, but are not subject to dismissal for failure to state a claim. Additionally, plaintiff argues that in evaluating whether defendants’ alleged conduct crosses the threshold of potential liability, the court must consider whether the relationship between plaintiff and defendants is one that imposes on defendants a greater obligation to refrain from subjecting the victim to abuse, fright or shock than would be true in arm’s-length encounters among strangers. Hall, 292 Or at 137. Relying on a Michigan case, Bharma v. Bharma, 425 NW2d 733 (Mich App 1988), plaintiff contends that defendants’ conduct must be evaluated in the light of their legal responsibility to comply with his right to visitation, their position of influence over plaintiffs children and their ability to have an impact on plaintiffs relationship with his children and to influence his emotional well being.

We agree with plaintiff that, because of their position of authority and influence over the children, defendants were uniquely capable of acting in a manner that could cause emotional harm to plaintiff. Ideally, at least for the sake of their children, the parties should be motivated to treat each [310]*310other with decency and respect. However, we hold that their relationship is not one that gives rise to the type of special duty of care or concern that is owed by a doctor or therapist to a patient. Although the parties’ open hostility certainly increases the likelihood that they might cause one another emotional harm, there is nothing inherent in their relationship as former spouses that requires a greater degree of care in the sense contemplated by the court in Hall.

Whether conduct is an extraordinary transgression is a fact specific inquiry, to be considered on a case-by-case basis, considering the totality of the circumstances. Lathrope-Olson v. Dept.

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Hetfeld v. Bostwick
901 P.2d 986 (Court of Appeals of Oregon, 1995)

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Bluebook (online)
901 P.2d 986, 136 Or. App. 305, 1995 Ore. App. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hetfeld-v-bostwick-orctapp-1995.