explaining that “ordinarily, absolute privilege is an affirmative defense that must be raised by answer” but that “it may be raised by motion to dismiss if the amended complaint alleges facts which, if true, estab- lish the privilege” and extending that principle to claims of IIED (footnote omitted)
How later courts described this case
- explaining that “ordinarily, absolute privilege is an affirmative defense that must be raised by answer” but that “it may be raised by motion to dismiss if the amended complaint alleges facts which, if true, estab- lish the privilege” and extending that principle to claims of IIED (footnote omitted)
- holding that trial court erred in dismissing claim for interference with custody where plaintiff parents alleged that defendants initiated custody proceedings based on the erroneous belief that plaintiffs’ child was suffering from neglect
- “Because the privilege ‘is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients,’ we see no reason why it should not also apply in claims for intentional infliction of emotional distress based on actions taken and statements made in connection with a judicial proceeding.”
- extending privilege to cover claims for intentional infliction of emotional distress
Written by the judges who cited it.
The opinion
BUTTLER, P. J.,
specially concurring.
Although I do not disagree with the majority’s holding that defendants’ absolute privilege bars plaintiffs’ first claim for relief, I would not reach that question, because plaintiffs have not alleged sufficient facts to state a claim for the intentional infliction of emotional distress.
The critical allegation in the first claim for relief is:
“Defendants’ conduct caused plaintiffs extreme emotional distress, as well as physical symptoms which required medical treatment. Defendants knew, or should have known, that plaintiffs were peculiarly emotionally susceptible and distraught at all material times mentioned here. Nevertheless, *723 defendants took their actions willfully, with deliberate disregard or reckless indifference for the distress and sensitivities of the plaintiffs. Defendants’ actions were beyond the limits of social toleration. As a result of defendants’ actions, plaintiffs have suffered extreme physical and emotional distress all to their general damages in the sum of $1,000,000.” (Emphasis supplied.)
Although plaintiffs allege that defendants took their actions “wilfully with deliberate disregard or reckless indifference for the distress and sensitivities of the plaintiffs,” they do not allege, as they must if there is no special relationship between them and defendants, that defendants intended to inflict severe mental or emotional distress. In Patton v. J.C. Penney Co., 301 Or 117, 122 , 719 P2d 854 (1986), the court set forth the elements of the tort:
“First, ordinarily a plaintiff must allege that a defendant intended to inflict severe mental or emotional distress. It is not enough that he intentionally acted in a way that causes such distress. Second, a defendant’s act must in fact cause a plaintiff severe mental or emotional distress. Third, a defendant’s actions must consist of ‘some extraordinary transgression of the bounds of socially tolerable conduct’ or the actions must exceed ‘any reasonable limit of social toleration.’ Hall v. The May Dept. Stores, 292 Or 131, 135, 137 , 637 P2d 126 (1981).” (Emphasis supplied.)
If there is a special relationship between the plaintiff and the defendant, then the wrongful purpose need not be alleged, if the tortious element may be found in the breach of some obligation that attaches to the special relationship. In such a case, a recklessness standard applies. See Brewer v. Erwin, 287 Or 435 , 600 P2d 398 (1979) (landlord and tenant); Rockhill v. Pollard, 259 Or 54 , 485 P2d 28 (1971) (doctor and patient); Bodewig v. K-Mart, Inc., 54 Or App 480 , 635 P2d 657 (1981), rev den 292 Or 450 (1982) (employer and employe). There is no special relationship alleged here.
Accordingly, I would affirm the dismissal of the first claim for failure to state a claim. I concur with the majority’s disposition of the second claim.
With respect to the concurring opinion, I share some of its concern for the absolute privilege accorded statements made during the course of judicial proceedings. However, I would approach with great care and hesitation the suggestion *724 that there be a good faith and fair dealing limitation engrafted on the privilege. The adversary process requires substantial freedom without fear that a jury, long after the event, might find a lack of good faith or fair dealing, even though statements made were relevant to the dispute. There is no doubt that an absolute privilege can be abused. However, if a lawsuit is commenced and maintained for a purpose other than that for which it is intended, the tort remedy for abuse of process is available.