NATHAN MELSON, a Minor, by PAMELA MELSON, Next Friend and Individually, and BRIAN MELSON, Next Friend and Individually, Plaintiffs-Appellees,
MARY BOTAS, Defendant-Appellant, and LAWTON COMMUNITY SCHOOLS and JOSEPH TRIMBOLI, Defendants
COA: 315014. Van Buren CC: 12-620436-CZ.
Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Justices. MARKMAN, J. (dissenting).
On order of the Court, the application for leave to appeal the June 19, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Markman, J. ( dissenting ).
Michigan is one of only two states whose highest court has not dispositively addressed the establishment, and the contours, of the tort of intentional infliction of emotional distress (IIED). In Roberts v Auto-Owners Ins Co, 422 Mich. 594, 603; 374 N.W.2d 905 (1985), this Court, in refusing to ratify such a tort, offered the following as partial justification for its decision:
The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs 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 some one'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. [Quotation marks and citation omitted.]
Justice LEVIN, in a lengthy separate opinion, outlined his own concerns and concluded that the tort of IIED would " increase the burden of litigation and randomly provide a fortuitous amount of compensation in a handful of isolated cases . . . ." Id. at 612 (opinion by LEVIN, J.). On subsequent occasions, this Court has chosen neither to recognize nor to repudiate the tort. See, e.g., Patterson v Nichols, 490 Mich. 988; 807 N.W.2d 164 (2012) (vacating Patterson v Nichols, 489 Mich. 937, 797 N.W.2d 643 (2011)); Powers v Post-Newsweek Stations, 483 Mich. 986, 987; 764 N.W.2d 564 (2009) (Kelly, C.J., concurring); Smith v Calvary Christian Church, 462 Mich. 679, 686; 614 N.W.2d 590 n 7 (2000).
In 1966, however, our Court of Appeals approved the tort of IIED. Frishett v State Farm Mut Auto Ins Co, 3 Mich.App. 688, 692-693; 143 N.W.2d 612 (1966). Under that Court's present formulation of the tort, which largely mirrors that of the Restatement Torts, 2d, § 46, a plaintiff may prevail on a claim of IIED if he or she can prove (a) that the defendant engaged in " extreme and outrageous conduct," (b) that the defendant intended to cause the
[497 Mich. 1038] plaintiff severe emotional distress or was reckless with regard to whether the plaintiff would suffer such distress, (c) that the defendant's actions actually caused emotional distress, and (d) that the emotional distress was severe. Graham v Ford, 237 Mich.App. 670, 674; 604 N.W.2d 713 (1999). Responsibility for delineating the tort has rested exclusively with our Court of Appeals since then.
In my view, the instant case underscores the present need for this Court to clearly and precisely address this tort, and if it is to be preserved, as I believe it ought to be, to carefully define its scope and limits through the exercise of our common-law authority.
The student plaintiff, a 12-year-old learning-disabled pupil in defendant Mary Botas's home economics class, was assertedly the victim of IIED when, after stopping work on a classroom project because his fingers hurt, he received an angry response from Botas, who stated, " Why don't you just go kill yourself?" before she ripped the project from his hands and threatened to lock him in a room. The student and his parents, individually and as next friend of their son, sued defendants for IIED. The trial court granted summary disposition in defendants' favor, reasoning that Botas's conduct had not been " extreme and outrageous," but the Court of Appeals reversed and remanded for trial. Melson v Botas, unpublished opinion per curiam of the Court of Appeals, issued June 19, 2014 (Docket No. 315014).
The issue here is not the appropriateness or professionalism of Botas's conduct; making such a statement to one's student cannot be defended. However, any disciplinary response to her conduct is a matter between Botas and the school district in which she is employed. The issue in the instant case is whether a responsible legal system should treat her conduct ...