stating that "the jury is expected to call on their personal experiences and common sense, and unless their knowledge is directly related to the litigation at issue, those experiences cannot be attacked as 'extraneous' prejudicial information"
How later courts described this case
- stating that "the jury is expected to call on their personal experiences and common sense, and unless their knowledge is directly related to the litigation at issue, those experiences cannot be attacked as 'extraneous' prejudicial information"
- defendant who was driving a car involved in a motor vehicle accident engaged in “outrageous” conduct where driver dragged mortally injured victim from accident scene, leaving victim to die hidden in a ditch, and then called victim’s mother and told her that victim had stolen the car, repeatedly denying knowledge of the whereabouts of the victim
- upholding jury verdict for plaintiff where evidence established severe emotional distress was primarily caused by extreme and outrageous intentional or reckless conduct of defendant
- “[W]e feel that the proper approach is to prohibit the use of juror affidavits which seek to impeach verdicts due to a juror’s intradeliberational statements based on his or her personal knowledge, when that knowledge is not directly related to the litigation at issue.”
Written by the judges who cited it.
The opinion
Caporale, J.,
dissenting.
Because the record establishes as a matter of law that the requisite elements of intentional or reckless conduct are lacking, I respectfully dissent.
It is well established in this state that before a plaintiff may recover for intentional infliction of emotional distress, he or she must establish, among other elements, that there was intentional or reckless conduct on the part of the defendant. See, Dale v. Thomas Funeral Home, 237 Neb. 528 , 466 N.W.2d 805 (1991); Braesch v. Union Ins. Co., 237 Neb. 44 , 464 N.W.2d 769 (1991); Pick v. Fordyce Co-op Credit Assn., 225 Neb. 714 , 408 N.W.2d 248 (1987); Gall v. Great Western Sugar Co., 219 *838 Neb. 354 , 363 N.W.2d 373 (1985); Hassing v. Wortman, 214 Neb. 154 , 333 N.W.2d 765 (1983); Davis v. Texaco, Inc., 210 Neb. 67 , 313 N.W.2d 221 (1981); Paasch v. Brown, 193 Neb. 368 , 227 N.W.2d 402 (1975).
In reaching its decision, the majority relies upon Restatement (Second) of Torts § 46 (1965), but ignores the comment which clarifies that § 46
applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.
Id., § 46, comment i. at 77.
“Recklessness, ” as the Restatement defines the term,
may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.
Id., § 500, comment a. at 587-88.
The majority paints the defendant Brian Busse’s conduct as intentional by pointing to the fact that he intentionally called the plaintiff, Judy Nichols, on the telephone. But merely establishing that Busse made a telephone call does not establish that by so doing, he desired to inflict severe emotional distress. Quite the contrary, Busse’s failure to inform Nichols about the facts of the accident can be read not as a way to hurt her, but, rather, as an attempt to shield her from injury. Busse’s disingenuity may as easily be inferred to have been a symptom of the classic denial that often accompanies traumatic experiences as that he wanted to inflict injury. Or his conduct may simply have been the result of plain cowardice.
Whatever the situation may have been, the record falls far *839 short of proving that Busse “desired” to cause Nichols sorrow, suffering, and severe emotional distress above and beyond that which a person would be expected to experience due to the loss of a daughter. Nor can it be said that Busse was certain, or substantially certain, that severe emotional distress would result from his actions.
Perhaps recognizing the frailty of its treatment of the intentional conduct issue, the majority next directs us to facts it concludes indicate that Busse’s actions meet the lower recklessness standard, contending that Busse’s “dragging and abandoning [the decedent’s] body, concealing his knowledge of the accident, and falsely accusing [the decedent] of stealing his pickup” were reckless.' But Busse’s act of dragging and deserting the decedent’s body after the accident cannot be said to have been done with substantial certainty that as a result Nichols would suffer emotional distress “so severe that no reasonable person should be expected to endure it.” The same holds true for Busse’s failure to inform Nichols of the accident and of his false accusation of automobile theft.
The accident and subsequent events were indeed tragic, and Busse’s conduct was reprehensible; but the tort system cannot compensate every wrong committed in our society. As noted in the first paragraph of this dissent, the record simply fails to establish that Busse acted with the intent or recklessness required to maintain an action for intentional infliction of emotional distress.
I would therefore reverse the judgment of the district court and remand the cause for dismissal.
Hastings, C. J., joins in this dissent.