holding that where plaintiff was diagnosed with depression and an ulcer before she even met the defendant, "[p]sychiatry and clinical psychology, while not exact sciences, can provide sufficiently reliable information relating to . . . the causal relationship between the injury and the defendant's conduct, to enable a trier of fact to make intelligent evaluative judgments on a plaintiff's claim."Summary of this case from Lewis v. Paul Revere Life Ins. Co.
September 30, 1963 —
November 1, 1963.
APPEAL from a judgment of the circuit court for Waukesha county: WILLIAM E. GRAMLING, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Edward P. Rudolph of Milwaukee.
For the respondents there was a brief by Miles Laubenheimer of Menomonee Falls, attorney, and Charlton, Yanisch, Binzak Ritchay of Milwaukee of counsel, and oral argument by Earl A. Charlton.
This is an action in tort for damages to the plaintiff widow resulting from emotional distress allegedly caused by the misconduct of the defendant contractor in the performance of a contract to re-side the plaintiff's house and to do other related work. The questions on this appeal are entirely legal and the following facts are pertinent.
In March of 1959, the plaintiff's husband suddenly died of a heart attack. Mrs. Alsteen had been married over twenty-five years. In April, Mrs. Alsteen's father died. After these events, Mrs. Alsteen experienced symptoms of depression. She complained of chest pains which were subsequently diagnosed by her family doctor as being psychosomatic. She generally felt listless and uninterested in her immediate surroundings. In June she was examined by her employer's (American Motors) physician. He found an ulcer. In view of this finding, coupled with her depressed emotional state, he recommended that she take a short vacation. In July Mrs. Alsteen spent some time with friends in Newfoundland. She returned to work in August, and according to her friends and fellow workers, she had revived her interest in her immediate surroundings.
In August, Mrs. Alsteen also entered into negotiations with the defendant, Gehl, leading to two separate contracts: (1) To replace the wooden siding on her home with aluminum siding, and (2) to install combination aluminum windows and doors. She made an initial down payment of $244, leaving a balance of $1,223.50 to be paid upon completion of Gehl's performance. Under the terms of the agreement, Gehl was to install Kraft paper, a vapor barrier, beneath the aluminum siding on all parts of the home; he was to install louvers in each gable; and he was to remove any trim damaged by dry rot. Although the written agreement contained no express time that Gehl's performance was to begin, the parties agreed orally that he was to be completed with the work in the second week of October. The second week in October arrived and still the work had not yet begun. Mrs. Alsteen went to see Gehl at his home. She requested that since she was going to undergo female surgery sometime in December, he should not begin the work until the spring of 1960. Gehl told her that she had signed the agreement and that he would commence work when he was able to allocate materials and men to the job. Mrs. Alsteen cried in his presence.
On October 30th, Gehl finally began the work. On that date, when Mrs. Alsteen returned from work she asked Gehl if it would be possible to extend the aluminum siding up to the eaves trough, thus completely removing a trim board which was honeycombed with dry rot. He stated that it could not be done and when she persisted in asking his workmen about the feasibility of such a project, he told them to ignore her.
At the time that the parties had negotiated the contract, Gehl had told Mrs. Alsteen that it would not be necessary to remove an overhang in the rear of the house in order to accomplish the siding job. When she returned home from work on the 31st of October, she discovered that the overhang had been removed. Gehl told her that it was necessary to do this in order to complete the project and asked her to decide upon a replacement. He gave her several dozen samples from which to choose. Several days later she discovered that an overhang had already been installed without her knowledge or consent.
Mrs. Alsteen had several other conversations with Gehl during the month of November. On one occasion she stated that she did not want triple-track aluminum windows. Gehl told her that he would install them anyway, because she ought to be concerned about the needs and tastes of subsequent owners of the home. On another occasion she asked him when he was going to install louvers in the gables. He told her that unless she wanted louvers on the roof she was not going to get them at all. On still another occasion, Mrs. Alsteen noted that Gehl's workmen were not placing the insulation paper between the aluminum siding and the original tar paper. When she inquired about this, the work men said they were simply carrying out their boss' orders. When she asked Gehl why the Kraft paper was not being installed pursuant to their agreement, he told her that he felt that it was not necessary to do so in all areas of the house.
On November 24th, Gehl halted work on the project. At this time, the old wooden siding had been removed from an area the width of the second floor on the east side of her house, three or four feet high. However, aluminum siding had not been installed so the original tar paper was exposed. The trim boards around the windows had been removed, but the aluminum combination windows and storms had not been installed. Without trim boards, Mrs. Alsteen could not use her old wooden storm windows.
This condition, coupled with the absence of insulation paper, exposed the occupants of the house to the elements of winter weather. Mrs. Alsteen closed off her upstairs and basement in an attempt to get maximum heat into the downstairs living area. She hung sheets over the windows in her home to act as wind barriers. Her son, who lived at home with her, had to sleep in the downstairs living room to take advantage of what heat was available. Visitors to the home often complained of the cold.
Early in December, Mrs. Alsteen called Gehl to complain about the intolerable living conditions and to ask him if he would not at least install the aluminum storm windows. Gehl stated that she was "foolish" to believe that installation of storm windows would reduce the cold to any appreciable degree. He ended the conversation by telling her that she made him "sick" and by slamming down the receiver. In January of 1960, upon advice of counsel, Mrs. Alsteen wrote Gehl a registered letter demanding immediate completion of the contract and stating that if the agreement were not executed at once, she would dismiss Gehl without notice and hire another contractor, holding Gehl responsible for any additional cost beyond his contract price.
On January 26th, Gehl completed the project from his point of view. On February 1st, Gehl sent Mrs. Alsteen an invoice which represented that the job was completed. The invoice stated that unless she signed the attached completion slip by February 9th, he would turn the account over for legal collection.
During the month of December, Mrs. Alsteen had experienced strong feelings of anxiety. She was unable to function effectively either on her job as a benchworker at A. M. C., or in her own home. She became disinterested in the people immediately around her and in her physical appearance. During this period she was treated for these symptoms by her family physician, Dr. DeWerth. In April of 1960, Dr. DeWerth referred Mrs. Alsteen to Dr. Benjamin Ruskin, a psychiatrist. Dr. Ruskin observed that she was experiencing anxiety, that she was listless and was generally unable to function effectively in her home or on her job. He diagnosed her condition as a depressive reaction and upon his recommendation she was hospitalized on April 21, 1960. While in the hospital she received five electric-shock therapy treatments. She was discharged from the hospital with a favorable prognosis on May 14, 1960. After a brief period of supportive therapy as an outpatient, Mrs. Alsteen returned to her normal routine on June 27th.
In August of 1960, Gehl commenced an action to recover the full contract price for both the siding and aluminum doors and windows jobs Mrs. Alsteen began a separate action claiming (1) that Gehl had intentionally inflicted severe emotional and psychological harm upon her, and (2) that Gehl had negligently inflicted such emotional harm upon her. Both actions were consolidated into a single trial, which was commenced before the circuit court for Waukesha county on May 28, 1962.
After a four-day trial and upon completion of all the testimony, the defendant Gehl moved for a directed verdict dismissing Mrs. Alsteen's complaint. The court withheld judgment on this motion. The following special verdict questions were submitted and the following answers given to such questions:
"(A) During the period between August, 1959 and July, 1960 did August M. Gehl conduct himself in an unreasonable manner with respect to Regina Alsteen? Answer: Yes.
"(B) If you answer Subdivision `A' Yes, then answer this question: Was such conduct on the part of August M. Gehl a substantial factor in causing the physical and mental injuries to Regina Alsteen? Answer: Yes.
"(A) During the period between August, 1959 and July, 1960 was August M. Gehl negligent with respect to the manner in which his contracts were undertaken? Answer: Yes.
"(B) If you answer Subdivision `A' of this question Yes, then answer this subdivision: Was such negligence a substantial factor in causing the physical and mental injuries to Regina Alsteen? Answer: Yes."
After the verdict was in, the trial court granted defendant's motion for a directed verdict.
Judgment was entered dismissing the plaintiff's complaint and awarding defendant $342.50 for work done by him for which he had not been paid. (Minus credit for down payment in the amount of $244.)
Three issues are raised on this appeal:
1. Can a homeowner who enters into a contract with a contractor for home re-siding and other home improvements, recover damages for severe psychological harm alone, if the contractor's conduct in performance of the agreement and in interpersonal contacts with the homeowner is deemed extreme and outrageous and if such extreme and outrageous conduct can be shown to have been undertaken by the contractor for the purpose of inflicting psychological harm on the homeowner?
2. On the facts of this case, was the contractor's conduct in performance of his agreement, and in his interpersonal contacts with the homeowner, extreme and outrageous?
3. Does such a contractor, performing a job pursuant to such an agreement, owe his customer a duty to conduct himself, both in the manner of performance of the work and in his interpersonal contacts with the customer, in a fashion which does not create an unreasonable risk of emotional harm?
Addressing ourselves to the first issue, this court has never expressly considered the question as to whether a person who intentionally inflicts severe emotional harm upon another by means of extreme or outrageous conduct ought to be held liable in tort for such behavior.
Pain and suffering is a compensable item of damage when related to a physical injury. Podoll v. Smith (1960), 11 Wis.2d 583, 106 N.W.2d 332; DeLong v. Sagstetter (1962), 16 Wis.2d 390, 114 N.W.2d 788.
We have also permitted recovery for severe emotional harm, if such psychological disturbance is a response to an intentional invasion of an independent legally protected interest. For example, one who has been libeled may recover damages for the emotional stress attending destruction of a good reputation.
We now conclude that a person may recover damages for severe emotional stress alone, if such psychological condition is the result of the extreme and outrageous conduct of another and if such course of conduct was undertaken by the defendant for the purpose of inflicting psychological harm upon the injured person.
Samms v. Eccles (1961), 11 Utah 2d 289, 358 P.2d 344, recovery allowed for persistent overtures for sexual intercourse resulting in severe emotional distress. State Rubbish Collectors v. Siliznoff (1952), 38 Cal.2d 330, 240 P.2d 282, threats of physical harm viewed as intentional infliction of emotional stress for which recovery was permitted. Duty v. General Finance Co. (1954), 154 Tex. 16, 273 S.W.2d 64, harassing and intimidating tactics of a collection agency held to have been an intentional infliction of emotional distress. Compensation allowed. Curnutt v. Wolf (1953), 244 Iowa 683, 57 N.W.2d 915 a threat to give an unfavorable job recommendation unless the plaintiff dropped a pending lawsuit, held to state a cause of action. Nickerson v. Hodges (1920), 146 La. 735, 84 So. 37, a gross practical joke designed to lead a simpleminded woman to believe that she had discovered a pot of gold, held to be a cause of action.
2d, Tentative Draft No. 1, 1957, p. 22, sec. 46.
"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from it."
In the view of the reporter, the Restatement reflects decided case law.
We cannot accept in full the Restatement statement of the rule. That rule incorporates two theories of liability into one doctrinal formulation. The term "intentional" implies that the defendant's course of conduct was undertaken for the purpose of imposing psychological harm upon the plaintiff. The term "recklessly" however, carries the entirely different connotation of gross negligence, so that a defendant who is not purposely attempting to impose psychological harm may still be held liable. In Bielski v. Schulze we abandoned the concept of gross negligence as a basis of liability in this jurisdiction. Therefore, our statement of the standard for liability is as follows:
One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from it.
In recognizing this cause of action, we give legal support to the basic value commitment of our society and our legal system — respect for human personality. If one person treats another as an object to be deliberately manipulated, humiliated, and scorned, he ought to be compelled to compensate that person for any disabling emotional response caused by his conduct. By holding the bullying party liable, we simultaneously affirm the injured party's value as a person, and express our moral disapproval of a person who treats others as mere things to be manipulated for his own ends.
In the past, this court has been hesitant to compensate emotional harm in the absence of attendant physical injury. The rationale for this result focuses upon the difficulties surrounding proof of subjective psychological experience.
"In discussing the reluctance of courts to extend any doctrine of recovery for mental distress alone to a situation where the defendant is charged with ordinary negligence, it is said in 64 A.L.R.2d, Emotional Disturbances, p. 113, sec. 6:
"`The contention that because of the nature of the evidentiary problems involved, the judicial process is not well adapted to distinguishing valid from fraudulent claims in this area, has been recognized as probably the most substantial of the reasons advanced for denying recovery for mental distress or its physical consequences.'"
Bogust v. Iverson (1960), 10 Wis.2d 129, 140, 102 N.W.2d 228. See also Gatzow v. Buening (1900), 106 Wis. 1, 20, 81 N.W. 1003, 1009: ". . . mental distress alone is too remote and difficult of measurement to be the subject of an assessment of damages."
The factual basis for the rule of no recovery for emotional distress alone has been considerably altered. While it may be true that at the time the rule of no recovery was formulated, we lacked techniques for gathering reliable information about psychological experience, we now possess the tools whereby we can intelligently evaluate claims of emotional injury. Psychiatry and clinical psychology, while not exact sciences, can provide sufficiently reliable information relating to the extent of psychological stress, and to the causal relationship between the injury and the defendant's conduct, to enable a trier of fact to make intelligent evaluative judgments on a plaintiff's claim. There is no reason to retain a long-standing legal rule when the factual assumptions underlying the norm are no longer supportable.
Proceedings of the Institute on Law and the Mind, Psychiatry and Psychology in the Trial Court. University of Wisconsin Extension Law Department, May, 1961.
The statement of the standard for liability needs some elaboration. Four factors must be established for an injured plaintiff to recover:
(1) The plaintiff must show that the defendant's conduct was intentional; that is to say, the defendant behaved as he did for the purpose of causing emotional distress for the plaintiff.
(2) In addition to being intentional, the defendant's conduct must be extreme and outrageous. The average member of the community must regard the defendant's conduct in relation to the plaintiff, as being a complete denial of the plaintiff's dignity as a person. The requirement that the conduct be extreme and outrageous reflects our concern with the difficulties surrounding proof of the existence of severe emotional harm, and proof of a causal relationship between the injury and the defendant's conduct. If the conduct is gross and extreme it is more probable that the plaintiff did, in fact, suffer the emotional distress alleged. Moreover, the requirement of extreme and outrageous conduct as a condition of recovery will avoid litigation "in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law."
Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard Law Review (1936), 1033, 1035.
(3) The plaintiff must demonstrate that the defendant's conduct was a cause-in-fact of his injury. The mere fact that a person may have had some pre-existing susceptibility to emotional distress does not necessarily preclude liability. A person who bullies another who is emotionally vulnerable shall be deemed liable for intensifying a pre-existing condition of psychological stress. However, a defendant will have the opportunity to demonstrate that the plaintiff's disabling emotional condition would have been present even in the absence of the defendant's intervening conduct. If the defendant should successfully make this demonstration, he would establish that this conduct was not a cause-in-fact of the injury, hence there would be no liability.
(4) The plaintiff must demonstrate that he suffered an extreme disabling emotional response to the defendant's conduct. The severity of the injury is not only relevant to the amount of recovery, but is a necessary element to any recovery. The plaintiff must demonstrate that he was unable to function in his other relationships because of the emotional distress caused by defendant's conduct. Temporary discomfort cannot be the basis of recovery.
Therefore, in the instant case, if Mrs. Alsteen could establish (1) that her depressive reaction, a disabling emotional disturbance, was caused by Gehl's conduct, (2) that he behaved as he did for the purpose of causing her emotional harm, and (3) that his conduct could be deemed outrageous and extreme by the average member of the community, she would be entitled to recovery.
On the facts of this case, was the contractor's conduct in performance of his agreement, and in his interpersonal contacts with the homeowner, extreme and outrageous?
In directing a verdict for the defendant, the trial court ruled:
"The conduct of Gehl in this case which was characterized by the jury as unreasonable is not of such a flagrant character to be the basis of recovery. The court is unable to find any decision in which unreasonable conduct has been the basis for recovery."
We agree with the trial court. Gehl's conduct, though unreasonable, was not extreme or outrageous and thus cannot form the basis for a recovery under the cause of action outlined above.
Does such a contractor, performing a job pursuant to such an agreement, owe his customer a duty to conduct himself both in the manner of performance of the work and in his interpersonal contacts with the customer, in a fashion which does not create an unreasonable risk of emotional harm?
This court has recognized that the breach of a contractual duty may give rise to a cause of action predicated upon negligence. Granting that Mrs. Alsteen and Gehl had a contractual relationship, how are we to define Gehl's duty of reasonable care to Mrs. Alsteen? It is well established that harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence. Are we to conclude that each person has a duty to use reasonable care to avoid creating unreasonable risks of emotional harm in relation to all persons with whom he may come into contact? It would be ironical to adopt this standard in the name of concern for people afflicted with emotional distress. We must recognize that all of us are subjected to various degrees of emotional pressure and that despite our best intentions we often quite carelessly treat others in a manner likely to cause them emotional stress. If such conduct, itself a product of emotional stress, were to be a basis of a lawsuit, each of us would be reinforcing the aggression and hostility we already possess and our society would be more abrasive than it already is. We must conclude that the desirable goal of avoiding careless disregard for the feelings of others must be accomplished by some other means than a lawsuit. Freedom to ventilate our feelings on occasion without fear of liability is necessary if we are to maintain optimum emotional health.
Colton v. Foulkes (1951), 259 Wis. 142, 47 N.W.2d 901; Presser v. Siesel Construction Co. (1963), 19 Wis.2d 54, 119 N.W.2d 405; Peterson v. Sinclair Refining Co. (1963), 20 Wis.2d 576, 123 N.W.2d 479.
Szep v. Robinson (1963), 20 Wis.2d 284, 291, 121 N.W.2d 753; Radloff v. National Food Stores, Inc. (1963), 20 Wis.2d 224, 232, 121 N.W.2d 865; Wisconsin Power Light Co. v. Columbia County (1962), 18 Wis.2d 39, 43, 117 N.W.2d 597.
More specifically, and considering the factual situation here, does a person performing a personal-service contract, such as Mr. Gehl, have the obligation to carry out such an agreement in a manner which does not create unreasonable risk of emotional harm? A person performing a personal-service contract carries with him his own feelings of hostility and his own set of emotional pressures. In our opinion, Mr. Gehl did not have a duty to Mrs. Alsteen to conduct himself in a manner unlikely to create unreasonable risk of emotional harm.
By the Court. — Judgment affirmed.