California Tort Law - Assignment Example

MEMORANDUM Harold Murton Client/Matter # 320-68770 Sunday, October 5, 2008 7:30:29 p.m. QUESTION PRESENTED Does Mr. Merton have a valid cause of action to file suit against Barnett Productions for intentional infliction of emotional distress due to the “extreme and outrageous” conduct of the defendant under California tort law, based upon the facts presented, despite the context of the reality show within which the alleged offensive events took place? SHORT ANSWER Based upon the circumstances of the case and the application of case law, it appears that Mr. Merton may indeed have a cause of action against Barnett Productions, for the trauma he suffered during the filming of the reality show. Barnett Productions administered a psychological test to Mr. Merton, which the latter passed. This factor, added to the context of the reality show within which the offensive events occurred, may be excellent grounds for defense for Barnett Productions. The company can argue that the events constitute mere annoyances within the context of a reality show. Despite such defenses however, two aspects work strongly in Mr. Merton’s favor – (a) the knowledge defendants had about his childhood trauma and the sign by which it was manifested externally and (b) the deceptive manner in which Mr. Merton’s cooperation was elicited. Since Mr. Merton was subjected to a reappraisal of his childhood trauma purely to generate a newsworthy reality show, the outrageous criterion may be established. STATEMENT OF FACTS A lounge singer, the client, Mr. Murton, is currently unable to work, because he suffers from recurring panic attacks, clinical depression, and paralyzing stage fright. He claims that these serious conditions are the result of Barnett Productions’ duping him into participating in a reality television show called “Regular Guy.” Specifically, he claims that, during the show’s taping, he was forced to partake in humiliating school-yard contests while a group of athletically gifted “hunks” ridiculed his limited physical abilities. Mr. Merton states that during the taping of the recess segment, the hunks shouted insults. “I remember, one of them said to another ‘What a bunch of losers. These guys look like 14-year-olds. We should kick their asses’ and another one said, ‘See these babies squeal? I bet they’re about to go in their pants’.” Mr. Merton states that he was subjected to a background investigation and psychological testing and passed both. According to Mr. Murton, the show’s producers also brought him to beach front property that was directly across from the school where Mr. Murton’s bullying had previously occurred. Mr. Merton also states that he was unaware that the taping of a new segment was to be based upon bullying. Only shortly before the taping commenced did he learn that the show was actually called “Regular Guy” and that it would be about fifteen average-looking roommates competing for the affections of one beautiful woman. Mr. Murton claims that Barnett Productions knew that he would experience a negative psychological reaction to these staged events, which mirrored emotionally scarring grade-school bullying he had already experienced as a child. Prior to the taping of the show, Barnett Productions learned that Mr. Murton had been abused while in grammar school. Specifically, Barnett Productions learned that Mr. Murton was targeted at recess by large cruel jocks; that he was whipped during games of dodge-ball; and that he was the subject of verbal taunts, such as “Watch the little loser run home to mommy after I nail him” and other similar degrading comments. Barnett Productions also knew that, as a direct result of the bullying, Mr. Murton was home schooled. Mr. Merton further states the taping of this bullying segment event mirrored the indecencies he had experienced in grade school. Mr. Murton also clarifies that he objected to what was clearly becoming a reincarnation of his past, but Barnett Productions’ representative responded: “Sorry, my friend, people love to watch this ambush stuff.” After the recess segment, Mr. Murton states that he crawled into a sandbox and started crying and shaking uncontrollably, and was taken to the hospital as a result. After a few days in the hospital on heavy meds, Mr. Murton was relieved from his commitment to the show. Originally scheduled to air on the Fox network this fall, the debut of “Regular Guy” has been postponed indefinitely. Mr. Merton also states that since the taping, he has panic attacks, is unable to sing and has been diagnosed with depression. In sum, the issue is whether Mr. Merton has a sustainable cause of action for intentional infliction of emotional distress under these circumstances. DISCUSSION Can Mr. Merton justify an argument that despite the context of a reality show, Barnett Productions engaged in “extreme and outrageous” conduct, with the intent to cause harm and this was the direct causal factor of Mr. Merton’s distress, entitling him to relief? Outrageous conduct would be that which an average person would hold as being intolerable in a civilized community, as per the precedent established in the case of KOVR-TV, INC. et. al. v. Superior Court of Sacramento et al., 209 Cal.App.3d 1023, 1024 (1995). Barnett Productions was aware of Mr. Merton’s childhood trauma, which was so deep that his hands were still shaking when he recounted it to the casting agents. It was also aware that Mr. Merton had not received therapy for his trauma as a child and hence, that a strong risk existed, of reawakening that emotional trauma which had scarred him as a child. Applying the precedent in the case of INLAND Mediation Board et al .v. City of Pomona et al. 31, Cal. App.4th 1023 (2001), Barnett Productions’ prior knowledge that Mr. Merton would be particularly vulnerable to stress could make it liable. Barnett Productions chose to ignore that risk, motivated by the prospect of eliciting newsworthy reactions from Mr. Merton to increase viewership for their show, which has not been held to be adequate justification, as per the precedent in KOVR-TV. Such an intrusion into Mr. Merton’s privacy and causation of trauma to a reasonably well-adjusted man could thus qualify as extreme and outrageous conduct, even in the context of a reality show. Barnett Productions may offer the argument that they carried out a psychological examination on Mr. Merton, which he passed. Moreover, they can also argue that in the context of a reality show, eliciting such reactions is acceptable and may not be extreme or outrageous in that context, applying the precedent established in Yurick v. Superior Court, 209 Cal.App.3d 1116, (1989). But the arguments in Mr. Merton’s favor may outweigh these defenses. In view of the circumstances of this particular case and by applying case law, it appears that Mr. Merton has a good chance of prevailing in this suit, and these arguments are further detailed below. Firstly, under California law, a claim of intentional infliction of emotional distress must show: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct....” KOVR-TV, INC. et. al. v. Superior Court of Sacramento et al., 209 Cal.App.3d 1023, 1027 (1995). In the KOVR case, a TV reporter approached three young children and tried to elicit a newsworthy reaction by informing them baldly that their neighboring friends had been killed by their mother, thereby causing them shock and emotional distress. Since Mr. Merton was hospitalized and is currently suffering from depression, unable to return to his work, his emotional distress can be established, as well as the causal factor of the stress, i.e, the taping of the show on bullying. This may serve to establish the fact that the defendant’s conduct was the cause of Mr. Merton’s emotional distress. But the major question that arises in order for Mr. Merton to file suit for Intentional infliction of emotional distress is (a) whether Barnett’s conduct can be termed “extreme and outrageous” and (b) whether Barnett caused Mr. Merton’s distress intentionally? The most important aspect to be taken into consideration is the context within which the events occurred. In defending their actions, it appears likely that Barnett Productions can offer two major arguments. The first is that in the context of a reality show, would a culture that feeds into reality television, find that the deception performed by Barnett in getting Mr. Merton on the show to re-live his childhood trauma, extreme and outrageous? Courts generally do not allow “recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.” Yurick v. Superior Court, 209 Cal.App.3d 1116, (1989). In the Yurick case, the Court held that a supervisor was not guilty of “extreme and outrageous” behavior for engaging in discriminatory and derogatory speech, rather it only amounted to mere annoyances because this was his customary manner of communication and was not accompanied by circumstances of aggravation. Barnett Productions could argue that what Mr. Merton has endured amounts to insults and indignities which qualify as mere annoyances applying the precedent in the Yurick case. Moreover, Barnett Productions may also contend that they subjected Mr. Merton to a psychological test, which he passed, thereby negating the potential for any adverse result arising out of emotional susceptibility. “Conduct, to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” KOVR-TV, INC. et. al. v. Superior Court of Sacramento et al., 209 Cal.App.3d 1023, 1027 (1995). “Generally, conduct will be found to be actionable where 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!”. Id. In the KOVR case, the TV reporter telling young children about shocking events such as the murder of their friends merely to elicit a newsworthy reaction was considered to be the kind of conduct that would generate such a reaction of “outrageous”! In Mr. Merton’s case, the events related to the taping of the show by Barnett resulted in Mr. Merton’s collapse and hospitalization, re-awakening a deeply debilitating childhood trauma which Mr. Merton recovered from with great difficulty after home schooling. Such an outcome is likely to elicit precisely the kind of reaction described in KOVR above. In the case of Inland, it was held that while “knowledge of a person’s special vulnerabilities is not required, the jury can consider it in deciding whether conduct was ‘outrageous’. Id. In this case, the defendant made racial remarks, knowing that the plaintiff African American would be especially susceptible to them. This was not the defendant’s customary behavior, as in the Yurick case; rather the defendant knew the African American would be particularly vulnerable and used that susceptibility to cause emotional distress. The Inland precedent may be especially relevant in Mr. Merton’s case, because Barnett’s prior knowledge of his childhood trauma could facilitate a decision by the jury that its conduct in re-subjecting him to the trauma was “outrageous”, because it was aware that he was especially susceptible. In the case of Yurick, it was further established that: “The standard for judging outrageous conduct hazards a case by case appraisal of conduct filtered through the prism of the appraisers values, sensitivity threshold, and standards of civility.” Yurick. Id at 1128. In the Yurick case, the filter applied was defendant’s customary standard of civility. Applying the filter of a reality show, it may be argued that in the context of a reality show, portraying other peoples’ trauma and pain amounts to typical behavior in that setting. But in Mr. Merton’s case, the conduct has been “accompanied by aggravating circumstances.” Id. For instance, the choice of setting for taping was close to Mr. Merton’s school, thereby ensuring that the trauma would be replicated. Moreover, even when Mr. Merton objected, he was not allowed to withdraw but was forced to carry through with the traumatic experience. Taping the events of the reality show have pushed Mr. Merton into a state of depression and he is unable to carry on with his original profession of singing. Such conduct may well be held to be in excess of the bounds tolerated by the general populous, because it is a violation of Mr. Merton’s privacy and his health and well being. In KOVR-TV, the court noted that the issue is “whether defendants have negated any reasonable inference that the defendants conduct was deliberately calculated, or recklessly undertaken, to elicit a “newsworthy” reaction, and if so whether such conduct exceeds the bounds tolerated by civilized society”. Id. at 1025. The court in that case found that in order to find liability “it is enough that defendant devoted little or no thought to the probable consequences of his conduct. Id. This appears to apply in Barnett’s case, where Mr. Merton was deliberately subjected to a recreation of his childhood trauma purely to elicit newsworthy reactions and purportedly entertain the public. In KOVR also, the Court found that taking advantage of the young girls’ friendship with the deceased children to elicit a newsworthy emotional response amount to outrageous behavior because it took advantage of the special susceptibilities of the children. This is also relevant in Mr. Merton’s case because Barnett made use of its knowledge of Mr. Merton’s susceptibilities to create a reality show around those circumstances. The Court may thus hold that Barnett’s conduct was outrageous because Mr. Merton was especially vulnerable, like the African American in Inland. In this case, the Court found defendant Keagy guilty of outrageous conduct. Id at 1158. The Court noted that “Plaintiff Cross was the only African-American in the room at the October 1st meeting… Those facts alone could prove sufficient to allow a jury to conclude that Defendant Keagy knew or had reason to know that Cross would be especially susceptible to emotional distress as a result of discriminatory conduct at the K-KAPS meeting. Id. Being isolated as the only person of a particular race present in a room while another person was hurling racial epithets was likely to generate considerable stress in the Plaintiff Cross. This is similar to Merton’s case, where as a child, he was isolated as a physically weaker person as compared to the other bullies. Barnett was also fully aware of Mr. Merton’s childhood trauma and all its details. They were aware that he had been singled out by his classmates and bullied. They also witnessed Mr. Merton’s external signs of distress in telling the story, i.e, his hands were shaking. They were also aware that Mr. Merton had not received psychiatric treatment for his trauma. All of these suggest that Barnett would clearly have been aware that Mr. Merton was especially vulnerable and susceptible to emotional distress caused by bullying. Yet, they chose to subject Mr. Merton to an almost exact replication of the painful events of his childhood. In addition, they did not divulge the exact type of show in which he was going to participate. Barnett misled Mr. Merton into thinking that he was joining a different genre of reality show. Thus there was also an element of deception in Barnett’s behavior, which would further lead to a finding of outrageous conduct. The fact that Mr. Merton’s hospitalization was triggered by his experiences taping the reality show is indisputable. Hence, the causal link between Barnett’s conduct and Mr. Merton’s emotional distress can easily be established but in order to be successful in a claim of intentional infliction of emotional distress, Barnett’s conduct must also be capable of being characterized as outrageous. The most significant factor working in Mr. Merton’s favor is Barnett’s knowledge of his particular susceptibility to bullying, especially because he had not received psychiatric counseling for his childhood trauma. The knowledge of Mr. Merton’s vulnerability, while simultaneously utilizing that knowledge to design a reality show to capitalize on that vulnerability for commercial purposes, would cause Barnett’s conduct to fall under the classification of outrageous. Barnett could offer a strong defense that in the context of a reality show, such events as the bullying segment would merely constitute annoying behavior and not conduct that is extreme and dangerous. But in Mr. Merton’s case, his susceptibility and vulnerability would work strongly in his favor. Barnett’s actions in deceptively forcing Mr. Merton to participate in the taping of the bullying segment also indicates that it was aware Mr. Merton may not have participated willingly in such taping, hence it was aware that the results could be potentially stressful and distressing for Mr. Merton. These factors are likely to predispose a jury to deliver a finding in Mr. Merton’s favor, despite the context of the reality show. Read More