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Kloepfel v. Bokor

April 17, 2003

JUDY KLOEPFEL, RESPONDENT,
v.
JOSEPH BOKOR, PETITIONER.



SOURCE OF APPEAL Appeal from Superior Court, Spokane County; 99-2-06968-9 Honorable Kathleen O'Connor, Judge.

The opinion of the court was delivered by: Sanders, J.

Oral Argument Date: 01/22/2003

Concurring: Gerry L. Alexander, Charles W. Johnson, Barbara A. Madsen, Faith E Ireland, Bobbe J. Bridge, Tom Chambers, Susan J. Owens, Mary E. Fairhurst

En Banc

The Court of Appeals affirmed a $60,000 judgment in favor of Judy Kloepfel against Joseph Bokor for intentional infliction of emotional distress. The issue here is whether the tort of outrage*fn1 requires proof of severe emotional distress by objective symptomatology and a medical diagnosis. Division One has required proof of objective symptomatology while Division Three in the case before us did not. We hold that the objective symptomatology requirement, which properly applies to the tort of negligent infliction of emotional distress, is not a requirement for proof of intentional infliction of emotional distress or outrage.

Mr. Bokor and Ms. Kloepfel began a relationship in 1986, moved in together to share expenses in 1994, and separated in July 1997 when Kloepfel moved out. Bokor, a former police officer, claimed their relationship became romantic when Kloepfel and he lived together. But she claims it was merely platonic. In any case, Kloepfel sought a restraining order against Bokor in August 1997. The court ordered Bokor to stay away from Kloepfel, and to not call her, threaten her, or go to her home, or place of business. Bokor ignored this and every subsequent court order to stay away from Kloepfel. Bokor's violations of no contact orders led to his conviction for several misdemeanors and a felony. He was convicted in January 1998 and again in March 1999 of 'harassment, domestic violence.' In September 1999 he was found guilty of making harassing phone calls and felony stalking. Bokor admitted he had repeatedly violated these no contact orders to stay away from Kloepfel. The violations continued until at least October 2000.

While under a no contact order he threatened to kill Kloepfel. He threatened to kill the man she was dating if he kept seeing her. While watching her house, he saw the truck of another man in her driveway and called that man's wife to inform her where her husband was, implying an affair. In all he called Kloepfel's home 640 times, her work 100 times, and the homes of men she knew numerous times as well. Kloepfel began spending weekends away from home to avoid Bokor. Her employer made various arrangements to protect Kloepfel from Bokor at work.

The court found Bokor's conduct severely disrupted Kloepfel's life and made it impossible for her to carry on a normal dating relationship with anyone else. His repeated phone calls and his driving by her house at all hours disturbed her privacy. Although she did not seek professional care of a doctor or counselor, her physical symptoms of emotional distress included nervousness, sleeplessness, hyper-vigilance, and stomach upset.

In December 1999 Kloepfel sued Bokor for invasion of privacy, malicious harassment, and intentional and negligent infliction of emotional distress.*fn2 A bench trial was held on the claim for intentional infliction of emotional distress only. Kloepfel prevailed on her claim of intentional infliction of emotional distress. The court awarded Kloepfel $60,265.00, including a judgment for $60,000, costs, interest, and statutory attorney fees.

Bokor appealed to Division Three of the Court of Appeals on several grounds, among them that his conduct was insufficiently severe to justify relief and that Kloepfel had failed to prove objective medical evidence of her distress. Kloepfel v. Bokor, No. 19993-2-III, slip op. at 1 (Wash. Ct. App. Mar. 12, 2002). The Court of Appeals panel unanimously affirmed the lower court on all counts in favor of Kloepfel. Id.

This issue requiring us to interpret the meaning of 'severe emotional distress' for purposes of the third element of outrage is a question of law, and our review is de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).

I.

The tort of outrage requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress. Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998) (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (citing Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987))). These elements were adopted from the Restatement (Second) of Torts sec. 46 (1965) by this court in Grimsby v. Samson, 85 Wn.2d 52, 59-60, 530 P.2d 291 (1975).*fn3

Grimsby held any claim for intentional infliction of emotional distress must be predicated on behavior ''so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'' Id. at 59 (quoting Restatement (Second) of Torts sec. 46 cmt. d). That must be conduct ''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!''' Reid, 136 Wn.2d at 201-02 (quoting Browning v. Slenderella Sys. of Seattle, 54 Wn.2d 440, 448, 341 P.2d 859 (1959) (quoting Restatement of Torts sec. 46(g) (Supp. 1948))). Consequently, the tort of outrage ''does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.' Grimsby, 85 Wn.2d at 59 (quoting Restatement (Second) of Torts sec. 46 cmt. d). Bokor does not here challenge the court's finding on the first two elements of intentional infliction of emotional distress.

Bokor argues, however, that the court should have required evidence of 'objective symptomatology' and a medical diagnosis to establish severe emotional distress. Pet. for Review at 2. The term 'objective symptomatology' emerged as a requirement for proof of negligent infliction of emotional distress in Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976), just one year after the adoption of the tort of outrage in Grimsby. For negligent infliction of emotional distress, a plaintiff must prove he has suffered emotional distress by 'objective symptomatology,' and the 'emotional distress must be susceptible to medical diagnosis and proved through medical evidence.' Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998). The symptoms of emotional distress must also 'constitute a diagnosable emotional disorder.' Id.

Bokor argues the same requirement applies to claims for outrage, relying on Haubry v. Snow, 106 Wn. App. 666, 31 P.3d 1186 (2001). Haubry held, with respect to an outrage claim, '{t}here is no doubt that {the defendant's} actions were outrageous and inappropriate. However, as with the claim of negligent infliction of emotional distress, to survive summary judgment {the plaintiff} necessarily had to ...


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