Snyder v. Medical Service Corporation of Eastern Washington12/2/1999
g Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
This tort "'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Grimsby, 85 Wn.2d at 59 (quoting Restatement, supra). "{I}t is not enough that a '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.'" Id. (quoting Restatement, supra). This is because all of us "must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration." Id. We first decide if reasonable minds could differ on whether the conduct here was sufficiently extreme to warrant submission to the jury. Birklid, 127 Wn.2d at 867; Dombrosky, 84 Wn. App. at 261. We consider
1. the position occupied by the defendant;
2. whether the plaintiff was particularly susceptible to emotional distress, and if the defendant knew this fact;
3. whether defendant's conduct may have been privileged under the circumstances;
4. whether the degree of emotional distress caused by a party was severe as opposed to mere annoyance, inconvenience, or normal embarrassment; and
5. whether the actor was aware that there was a high probability that his or her conduct would cause severe emotional distress and proceeded in a conscious disregard of it. Birklid, 127 Wn.2d at 867.
Ms. Hall insulted, threatened, annoyed, showed unkindness, and acted with a callous lack of consideration. But this is not enough. Grimsby, 85 Wn.2d at 59. We hold that the level of incivility demonstrated here does not reach a level to support a claim of outrage. Further, no one at MSC, including Ms. Hall, knew that Ms. Snyder was susceptible to emotional injury. Birklid, 127 Wn.2d at 867. Ms. Snyder has not, therefore, made out a case for outrage or intentional infliction of emotional distress. Negligent Infliction of Emotional Distress. To prove this cause of action, Ms. Snyder must show (1) that her employer's negligent acts injured her, (2) the acts were not a workplace dispute or employee discipline, (3) the injury is not covered by the Industrial Insurance Act, and (4) the dominant feature of the negligence claim was the emotional injury. Chea v. Men's Wearhouse, Inc., 85 Wn. App. 405, 412-13, 932 P.2d 1261 (1997), review denied, 134 Wn.2d 1002 (1998).
Like all negligence claims, a negligent infliction of emotional distress claim requires duty, breach, proximate cause, and injury. Hunsley v. Giard, 87 Wn.2d 424, 434-35, 553 P.2d 1096 (1976). Emotional distress is "a fact of life" and so the elements of duty, breach, causation, and injury place limits on an employer's liability for emotional distress. Hunsley, 87 Wn.2d at 435; Bishop v. State, 77 Wn. App. 228, 233, 889 P.2d 959 (1995). In other words, a defendant's liability is measured "by the strictures imposed by negligence theory, i.e., foreseeable risk, threatened danger, and unreasonable conduct measured in light of the danger." Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 962, 577 P.2d 580 (1978). Ms. Snyder must also show objective symptoms of emotional distress. Id.; Whaley v. State, 90 Wn. App. 658, 673, 956 P.2d 1100 (1998).
Ms. Snyder argues that she does not have to show objective symptoms prior to when she began her medical leave. She contends her emotional distress must only be susceptible to medical diagnosis and proved through medical evidence. She relies on Hegel v. McMahon, 136 Wn.2d 122, 132-35, 960 P.2d 424 (1998). He
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