⚡ 10-Second Rule
Being outrageously cruel on purpose, so badly that someone falls apart inside, is its own wrong.
🧒 ELI-10 Scene
A teenager tells eight-year-old Sam, as a "prank," that Sam's mom was hit by a car and is dying. He films Sam sobbing and shaking, then laughs and says he made it up. Sam can't sleep for weeks. Nobody touched Sam. Nobody threatened him. The cruelty itself, and the wreckage inside Sam, is the wrong. Ordinary meanness — "your drawing is ugly" — never comes close.
⚖️ Actual Rule
Under Restatement (Second) of Torts § 46(1), a defendant who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that distress, and for any bodily harm resulting from it. Conduct clears the "extreme and outrageous" bar only in truly exceptional cases — behavior a community would find shocking and impossible to excuse; ordinary insults, indignities, threats, and petty meanness fall short. Conduct can become outrageous from context: abuse of a position of power (common carriers and innkeepers are held to stricter courtesy), deliberate exploitation of a known sensitivity or fragility (children, the elderly, a known phobia), or relentless repetition. This is the one intentional tort where recklessness — conscious disregard of a high probability of severe distress — satisfies the mental element. The distress must be severe, beyond what a reasonable person should be expected to endure; under the majority rule, no physical injury or bodily symptom is required. When the conduct is directed at a third person, Restatement (Second) of Torts § 46(2) allows recovery by an immediate family member who is present and perceives the conduct, whether or not bodily harm results, and by any other present person only if the distress produces bodily harm; the defendant generally must know of the bystander's presence. Classic transferred intent does not apply to this tort — it is not one of the old trespass writs — so the third-party rules and recklessness do that work instead.
ELI-10 translation: The cruelty must be off the charts. The inner damage must be crushing. Cruelty that plows past an obvious risk counts too.
🔍 Ask These Questions
- Was the conduct extreme and outrageous? (Would an ordinary person shout, "that's beyond all limits!"?)
- Do any boosters raise it? (Power over the victim, a known soft spot, or drumbeat repetition raises it.)
- Did the defendant act with intent or recklessness? (Did he want the breakdown, or ignore an obvious risk of one?)
- Was the distress severe? (Sleepless months, therapy, terror — not one bad, embarrassed afternoon.)
- Was the conduct aimed at someone else? (Family members watching can recover; watching strangers also need bodily harm.)
- Did the defendant know the bystander was there? (He generally must know who is watching.)
⚠️ Bar Trap
Exam language: Examiners give conduct that is rude, humiliating, even malicious — a cutting insult, a single crude threat — and a plaintiff described as "upset and embarrassed," then offer liability. Both elements fail: mere insults are not outrageous, and embarrassment is not severe distress. A second trap invites transferred intent to rescue a bystander claim; use the third-party rules of § 46(2) instead.
ELI-10: Mean is not the same as monstrous. Upset is not the same as shattered. And intent does not hop to bystanders here — they need their own rule.
🧪 Question
A man, seeking revenge against a former business partner, attacked the partner with a baseball bat on the partner's front lawn. The man knew that the partner's wife was standing in the open doorway a few feet away, and she watched the entire beating while screaming for him to stop. The partner survived. In the following months the wife suffered recurring nightmares, was unable to work, and required psychiatric treatment, though she developed no bodily injury or physical illness. The wife sued the man for intentional infliction of emotional distress.
Will the wife prevail?
(A) No, because the man's conduct was directed at her husband rather than at her. (B) No, because her emotional distress produced no bodily harm. (C) Yes, because she was an immediate family member who was present, whose presence was known to the man, and who suffered severe distress. (D) Yes, because the man's intent to batter her husband transfers to support her emotional-distress claim.
Answer: (C). The third-party rule covers her exactly: she is immediate family, she was present and perceived the attack, the man knew she was there, and her distress — months of nightmares, lost work, psychiatric care — is severe. Family-member bystanders need no bodily harm.
💡 Why the Wrong Answers Are Wrong
- (A) ignores the third-party branch of the doctrine, which exists precisely for conduct directed at someone else.
- (B) applies the bodily-harm requirement for stranger bystanders to an immediate family member, who is exempt from it.
- (D) invokes transferred intent, which does not apply to this tort; the third-party rule, not transfer, supplies liability.
- ELI-10: The misconception is treating watching family like watching strangers. Close family who see it happen don't need physical wounds.
