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The Anatomy of Emotional Distress Claims in Minnesota Michael K William Mitchell Law Review Volume 19 | Issue 1 Article 1 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson Mitchell Hamline School of Law, [email protected] Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Part of the Torts Commons Recommended Citation Steenson, Michael K. (1993) "The Anatomy of Emotional Distress Claims in Minnesota," William Mitchell Law Review: Vol. 19: Iss. 1, Article 1. Available at: http://open.mitchellhamline.edu/wmlr/vol19/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Steenson: The Anatomy of Emotional Distress Claims in Minnesota William Mitchell College of Law Mitchell Open Access Faculty Scholarship 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson William Mitchell College of Law, [email protected] Publication Information 19 William Mitchell Law Review 1 (1993) Repository Citation Steenson, Michael K., "The Anatomy of Emotional Distress Claims in Minnesota" (1993). Faculty Scholarship. Paper 24. http://open.wmitchell.edu/facsch/24 This Article is brought to you for free and open access by Mitchell Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Open Access. Published by Mitchell Hamline Open Access, 1993 1 William Mitchell Law Review, Vol. 19, Iss. 1 [1993], Art. 1 The Anatomy of Emotional Distress Claims in Minnesota Abstract This Article examines the right to recover damages for emotional distress in Minnesota, with emphasis on claims for negligent and intentional infliction of emotional distress. The recovery of damages for emotional distress is subject to varying and perhaps seemingly inconsistent standards. After a brief history of emotional distress law, the Article will discuss claims for emotional distress based on negligence, intentional torts, and statutory violations. These areas are examined in detail to determine the standards for the recovery of emotional harm in Minnesota and to evaluate whether the standards are applied consistently. The Article also examines the right to recover damages for emotional distress in specific contexts, including contractual disputes, professional malpractice, and business torts. Keywords IIED, NIED, Minnesota torts, Hubbard v. United Press International, Hubbard Standards, Defamation, zone of danger, emotional injury, negligent infliction of emotional distress, mental anguish Disciplines Torts This article is available at Mitchell Open Access: http://open.wmitchell.edu/facsch/24 http://open.mitchellhamline.edu/wmlr/vol19/iss1/1 2 Steenson: The Anatomy of Emotional Distress Claims in Minnesota THE ANATOMY OF EMOTIONAL DISTRESS CLAIMS IN MINNESOTA MICHAEL K. STEENSONt I. Introduction ...................................... 2 II. Negligent Infliction of Emotional Distress ......... 4 A. The Zone of Danger Requirement ............ 6 1. The Zone of Physical Danger? ............. 6 2. Where Emotional Harm is the Product of Fear for Another's Safety .................. 11 3. A Bystander Recovery Rule for Minnesota? . 15 4 . Dlrect· V·'lcum R ecovery..;> .................. 17 B. The Physical Injury Requirement .............. 22 III. Intentional Infliction of Emotional Distress ....... 27 A. Judicial Treatment of Intentional Infliction of Emotional Distress pre-Hubbard: A Short History ....................................... 28 B. Hubbard v. United Press International: Minnesota's New Tort ..................................... 32 1. Basis for Intentional Infliction of Emotional Distress ................................... 33 2. Elements of Intentional Infliction of Emo- tional Distress ............................. 34 3. Standards for Measuring Intentional Inflic- tion of Emotional Distress ................. 35 C. Illustrative Applications of the Hubbard Standards ..................................... 37 1. Breach of Contract and Employment Dis- charge Claims ............................. 37 2. Sexual Abuse Cases ....................... 40 3. Defamation ................................ 40 D. Are the Guidelines Appropriate? .............. 41 IV. Statutory Actions, Tort Claims, and Wrongful Death ............................................. 51 A. Statutory Actions ............................. 51 1. Minnesota Human Rights Act Claims ...... 52 t Margaret H. and James E. Kelley Professor of Tort Law, William Mitchell College of Law. Published by Mitchell Hamline Open Access, 1993 HeinOnline -- 19 Wm. Mitchell L. Rev. 1 1993 3 William Mitchell Law Review, Vol. 19, Iss. 1 [1993], Art. 1 2 WILLIAM MITCHELL LA W REVIEW [Vol. 19 2. Polygraph Examinations. 54 3. Fair Debt Collection Practices Act .... 56 B. Interference with Family Relationships .,. 59 1. Intrafamily Claims for Emotional Distress. 61 2. Interference with the Custodial Relationship 64 C. Intentional Interference with Contractual Relations ...................................... 73 D. Misrepresentation and Fraud. 75 E. Legal Malpractice . 80 F. Invasion of Privacy. 82 G. Defamation.................................... 84 1. Defamation and Negligent Infliction of Emo­ tional Distress . 84 2. Defamation and Intentional Infliction of Emotional Distress-Limitations. 87 H. Wrongful Death ............................... 93 V. Conclusion......................................... 96 I. INTRODUCTION The right to recover damages for emotional distress is firmly established in Minnesota law. l In 1886, the Minnesota Supreme Court first recognized this right in Keyes v. Minneapolis & St. Louis Railway.2 The court stated: - The mental distress and anxiety which may be proven in ac­ tions for personal injuries is confined to such as is con­ nected with the bodily injury, and is fairly and reasonably the plain consequence of such injury. The mental anguish, like physical pain, to be taken into consideration in such cases, is confined to such as is endured by the plaintiff in consequence of a personal irtiury to himself.3 1. Minnesota jury Instruction Guide (JIG) 155 covers personal injury damages and states that damages are recoverable for "[a]ny pain, disability, (disfigurement), (embarrassment), or emotional distress experienced ... up to the time of trial." MIN­ NESOTA PRACTICE, CIVILjURY INSTRUCTION GUIDES No. 155 at 141 (3d ed. 1986). JIG 158 also recognizes the right to recover similar damages that the injured person "is reasonably certain to experience in the future." Id. No. 158, at 147. 2. 36 Minn. 290, 30 N.W. 888 (1886). 3. [d. at 293, 30 N.W. at 889. In Keyes, the plaintiff sought to recover damages caused by the defendant's obstruction of a public highway. The plaintiff testified that his greatest anxiety in attempting to extract his horses from a barbwire obstruction was not for himself but for his wife and daughter, who were in the carriage while he attempted to free his horses. The admission of that evidence was assigned as error by the defendant following a verdict for the plaintiff. Although the court found that the evidence ofthe plaintiff's anxiety for his wife and daughter should not have been http://open.mitchellhamline.edu/wmlr/vol19/iss1/1 HeinOnline -- 19 Wm. Mitchell L. Rev. 2 1993 4 Steenson: The Anatomy of Emotional Distress Claims in Minnesota 1993] EMOTIONAL DISTRESS Again, in 1916, in Patterson v. Blatti,4 the Minnesota Supreme Court said that "it is well settled that in an action for personal injury, mental suffering reasonably certain to be endured in the future may be taken into account in estimating damage."5 The Patterson court also considered whether damages for emo­ tional distress arising from a disfigurement were recoverable. The court noted that the decisions in other jurisdictions were in "hopeless conflict" as to whether "humiliation or mortifica­ tion to arise in the future on account of disfigurement of a per­ son is a proper element of damage."6 However, having recognized that damages for mental suffering in a personal in­ jury claim are recoverable, the court saw no reason to treat mental suffering consisting of humiliation or mortification differently: The cause is in no sense uncertain. It is no more intangible or difficult of proof than is mental suffering in general. The fact that it may survive the physical pain does not seem to us decisive as long as it has its inception with the physical in­ jury. We hold that it was proper for the court to instruct the jury that they might take into account the humiliation, if any, from permanent disfigurement of person.7 Despite these unequivocal statements, many questions re­ main unanswered. The recovery of damages for emotional dis­ tress is subject to varying and perhaps seemingly inconsistent standards. Recovery may depend on whether a claim is based on negligence or an intentional tort. Recovery may also de­ pend on whether the emotional distress arose from the com­ mission of a recognized tort, a statutory violation, or forms the sole basis of the claim. Likewise, recovery in accident cases de- admitted, the court concluded that the admission of the evidence did not constitute prejudicial error. [d., 30 N.W. at 889-90. 4. 133 Minn. 23, 157 N.W. 717 (1916). 5. Id. at 27, 157 N.W. at 718 (citing Cooper v. St. Paul City Ry., 54 Minn. 379, 56
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