The Volokh Conspiracy
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Basketball Player's Outburst to Heckling Fan Isn't Actionable Infliction of Emotional Distress
Another interesting twist from the Keisel v. Westbrook Utah Court of Appeals decision that I discuss in a separate post that deals with a libel lawsuit based on some follow-up statements:
In March 2019, the Utah Jazz were playing a game against the Oklahoma City Thunder. Midway through the second quarter, Russell Westbrook, the Thunder's point guard at the time, had a verbal altercation with Shane Keisel, a Jazz fan who was sitting next to his girlfriend Jennifer Huff just a few rows up from the court. In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase "on your knees." … [In response], Westbrook shouted: "I swear to God, I'll fuck you up, you and your wife, I'll fuck you up, … I promise you on everything I love, on everything I love, I promise you." …
"Due to the highly subjective and volatile nature of emotional distress and the variability of its causations, the courts have historically been wary of dangers in opening the door to recovery therefor." On an intentional infliction of emotional distress claim, our courts thus require a plaintiff to demonstrate:
(a) that a defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality; (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result; and (c) that severe emotional distress resulted as a direct consequence of the defendant's conduct.
And to sustain such a claim, "a defendant's alleged conduct must be more than unreasonable, unkind, or unfair, it must instead be so severe as to evoke outrage or revulsion."
"Unlike a claim for intentional infliction of emotional distress, a claim for negligent infliction of emotional distress does not require proof of outrageous conduct." But even so, the conduct at issue "must be severe; it must be such that a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." A defendant can therefore be held liable for negligent infliction of emotional distress only if the defendant "(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm." …
Profane outbursts are of course unfortunate and disfavored in civil society. But even so, courts commonly hold that, without something more, a profane outburst isn't enough to sustain an intentional infliction of emotional distress claim. See, e.g., McGrew v. Duncan, 333 F. Supp. 3d 730, 742–43 (E.D. Mich. 2018); Jiminez v. CRST Specialized Transp. Mgmt., Inc., 213 F. Supp. 3d 1058, 1065–66 (N.D. Ind. 2016); Walker v. Mississippi Delta Comm'n on Mental Health, No. 4:11CV044, 2012 WL 5304755, at *9–10 (N.D. Miss. Oct. 25, 2012); Lawson v. Heidelberg E., 872 F. Supp. 335, 336, 338–39 (N.D. Miss. 1995); Groff v. Southwest Beverage Co., Inc., 997 So. 2d 782, 787 (La. Ct. App. 2008); Lombardo v. Mahoney, No. 92608, 2009 WL 3649997, at *1–2 (Ohio Ct. App. Nov. 5, 2009). And while we're aware of no similar case that arose in the negligent infliction of emotional distress context, we believe that a similar result would likely be reached if such outbursts were assessed under the "severe" conduct rubric that's used in such cases.
Moreover, in assessing any emotional distress claim, a court must of course consider the context in which the offending conduct occurs. Words that might be outrageous or severe if spoken at a funeral may well be interpreted differently if they are spoken by the proverbial sailors at sea….
Westbrook's outburst occurred at a professional sporting event, a place where society has unfortunately come to expect some amount of intemperate behavior. And the outburst at issue also wasn't unprovoked. Again, Keisel admitted that Westbrook was responding to an initial statement from Keisel that could have been understood as a sexual if not homophobic slur. These details of course change the calculus as to whether Westbrook's response was so outrageous or severe that it could support an emotional distress claim.
Pushing back, Keisel and Huff repeatedly assert that they felt physically threatened by Westbrook's outburst. But when confronted with claims like these, a court must be capable of distinguishing between actual threats of violence and something that was merely profane posturing. Here as elsewhere, context is key.
As recognized by the district court, Westbrook's outburst occurred "in the presence of security personnel and thousands of spectators," and Westbrook was separated from Keisel and Huff by several rows of spectators. As also recognized by the district court, Keisel and Huff then "remained in the Arena to watch the rest of the game," a choice that belies any suggestion that they really thought there was a "real risk that Westbrook would make good on his threat."
Still seeking to find some solid footing for their suit, Keisel and Huff point to the power imbalance between them and Westbrook. From this, they suggest that Westbrook had implicitly threatened to evoke outrage against them through his "followers." But Westbrook said nothing of the sort. Rather, what he said was "I'll fuck you up." While this was clearly a profane response to Keisel's initial comments, it strains credulity to suggest that, with this statement alone, Westbrook was threatening to subsequently engage in an orchestrated campaign of public ridicule against this unnamed fan who had just taunted him from the stands.
["][P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.["] While this comment from the Restatement [of Torts] was directed at the "outrageousness" element of an intentional infliction of emotional distress claim, the sentiment has some natural bearing on the "severe" element of a negligent infliction claim as well. And it largely explains why the profane statements from Westbrook do not support the claims at issue.
We certainly don't condone what Westbrook said. Sports and society alike would be better off without such language. And for that matter, the other fans who were sitting nearby deserved far better from both Westbrook and Keisel. These two adults could and should have found a way to disagree better.
But even so, under well-worn legal standards, we agree with the district court that Westbrook's outburst could not support a claim for either intentional or negligent infliction of emotional distress.
