*1 131 9, 1981, rehearing Argued May and submitted reversed and remanded December January denied

HALL, Review, Petitioner on v.

The MAY DEPARTMENT STORES al,

CO. et Respondents on Review.

(TC A7708-11282, 27501) CA SC P2d 126

132-a argued Ierulli, Portland, the cause and filed Frank M. petitioner briefs for on review.

Jeffrey argued Batchelor, Portland, the cause for M. Spears, respondents on review. With him on the brief were Lubersky, Campbell Bledsoe, & James H. Clarke and David B. Markowitz. Tongue, Lent, Denecke, Justice, Linde,

Before Chief Peterson, Tanzer, Justices.

LINDE, J. *3 part opinion concurring Lent, J., and dissent- filed part. ing in dissenting opinion. J.,

Denecke, C. filed a 132-b

LINDE, J.

Plaintiff, in a former saleswoman the cosmetics department department brought store, of a & Frank Meier damages for and an action for defamation for intentional allegedly distress suffered after she infliction emotional security shortages questioned by personnel about was store register. in a cash The returned verdicts for compensatory defendants on the defamation claim and for damages punitive claim on of intentional infliction of The circuit allowed emotional distress. court judgment notwithstanding defendants’ motion for the ver- Appeals opinion. dict, and the Court of affirmed without Having judge allowed review consider whether the trial applied finding a mistaken standard or erred in evi- law, dence we insufficient as matter of reverse compensatory damages. decision as the verdict for The I. Facts litigation giving The of events rise course briefly may Plaintiff, then 19 follows. summarized years department employed old, was the cosmetics Washington Square store. She consid- & Frank’s was Meier ered a employee promising competent and was with a future supervisors employees. good and other terms with her department were lines merchandise in the Different compensation assigned saleswomen, whose several assignments depended part on their success and future handling their lines. experienced Meier & Frank substantial stores company losses from theft as well as mistakes. The

annual attempted security by these means of store to control losses by personnel separate programs, which were conducted management the time of the individual stores. At from of years programs events, di- had for been these investigation George In the Rummell. rected defendant employed system shortages, register Rummell of cash days register short which showed the when charts days days when matched these with the than $10 more using salespeople working at a station were individual register. days divergence between charted A substantial days particular register shortages at of cash employees suspicion eliminate would tend to worked *5 employees; whose employees days those of work showed high days shortages correlation with of would remain potentially responsible for these shortages. chart,

On the basis of one such Rummell on April 1, 1977, bring plaintiff sent woman assistant to the store, of security Washington Square office the he where questioned her a run concerning shortages of the cash register plaintiffs at any work station. Plaintiff denied knowledge shortages or their cause. the possible At interrogation, reported end of the she it to her immediate supervisor and to the subsequently manager assistant store, the manager sympathetic expressed of who were the given confidence in her innocence. Plaintiff was rest day pay. the off with was not thereafter She accused of questioned shortages. about 1, plaintiff, April after the events of

Sometime counsel, an from defendants. apology demanded through department gradually in the took Her career cosmetics supervisor assigned worse. Her to other sales- turn for the had plaintiff previously lines of merchandise women which encouraged expect, or been reduced assigned been her Eventually, up employ- she gave her sales and income. & ment at Meier Prank’s. essentially much There sub- undisputed.

This dispute questioning Rummell’s manner of stantial about after plaintiff, reviewing to which we return relevant legal issues.

II. The Tort theory Pro- Plaintiffs claim rests on tort synthesized fessor William Prosser from scattered cases recovery variety in a of factual for mental distress allowing Prosser, Suffering: Intentional Mental settings. Infliction of Tort, A see Tort (1939); New White, 37 L Rev 874 Mich (1980). America 102-106 Law in In such effort divergent patterns single factual as instances describe tort, easy the elements of the tort so as to it is not to define appears it in given fit cases. As from the title Prosser’s all however, article, in the Restatement of and later embraced Emotional Distress Torts “Conduct Intended Cause § (1948 612-616), Supp theory plaintiffs claim Only,”

135 torts, it is most Like intentional torts. among belongs mind, state of a defendant’s elements of marked plaintiffs causes the act that the defendant’s character some and under injury, nature of injury, and defen- relationship between circumstances P2d 435, 454-458, 600 Erwin, Or Brewer v. dant. See “intent” of defendant’s cases, the element In the or emo to inflict mental purpose from a calculated ranges for some hostility, or personal tional distress because methods like the debt collection purpose impersonal Bureau, Inc., 568 P2d 279 Or Billing Turman v. Central prac (1977), mindless “amusement” through the Downton, v. leading in the case of Wilkinson jokes, tical painful ^[1897] 2 act with Q.B. 57, knowledge to encompass also it will cause *6 the intent grave to do distress, to the position in relation the defendant’s when itself, as the tort responsibility aside from involves some away who turned physician in the case of this court found Pollard, Or v. 259 seeking help. his Rockhill accident victims (1971). indifference foresight, Lack of 485 P2d 28 enough is not distress, gross negligence even possible recovery. theory this support in fact intent, act must from defendant’s

Apart distress of severe cause mental or emotional kind recovery for the kind; provide the tort does not serious can result feelings that annoyance injured or temporary life day-to-day in among people and rudeness from friction dis causing plaintiffs the intentional conduct even when insults, liability. Similarly, qualifies otherwise for tress ordinarily do words, rude behavior or intimidating harsh or intended to damages even when liability not result hardly civility standards Contemporary distress. cause into an every justified indignation case of turning allow Erwin, See Brewer v. recompense. action for financial Clark, (1979), v. Pakos at 600 P2d 398 287 Or supra, (1969). requires 113, 132, P2d The tort 253 Or socially extraordinary transgression of bounds some tolerable conduct. actiona- separates to articulate what attempting

In crudely aggressive, ordinary run of from the ble conduct or overbearing, ill-tempered behavior, Prosser and the Re- statement turned to adjectives like “outrageous” “extreme.” These are art; not words of other words or phrases could serve as designed only well. All are express the outer end gradation of some or impropriety scale of disapproval. social No conveyed by more can be defining epithet one by another. As the court said in Rockhill v. Pollard, supra, 259 Or at purpose for the informing trial court’s exercise of responsibility, its own case, the facts of the decided probably convey cases more any than battery of verbal formulas. already stated,

As Rockhill recovery sustained a when a physician, called to his office on a December evening to meet injured accident victims including an infant, rudely unconscious refused to administer proper medical examinations or emergency treatment. The conclu substantially sion rested physician’s professional on the obligations patients.1 decision, toward A preceding the first formulation, this state to discuss the Restatement sus against tained nonsuit a plaintiff who claimed that deputy sheriffs upset and frustrated him when he went to the sheriffs inquire office to about a charge against made him. The court held that even if the officers’ conduct was annoying insulting, “an indignity and con duct unbecoming peace officers,” a jury could not reasona bly find it “so extreme and outrageous permit as to recov ery.” Clark, 113, 132, Pakos v. 253 Or 453 P2d 682 A decision, third Billing Bureau, Inc., Turman v. Central supra, liability affirmed the agency of a debt collection pursued plaintiff with abusive and tele threatening *7 phone learning plaintiff calls even after had made arrangements with the creditor to settle the debt. Most Erwin, in recently, Brewer v. supra, we described Turman as “a falling recognized within well line of involving cases personally abusive business tactics. . against inexperi . enced and vulnerable individuals.” 287 Or at In 457. Brewer important particular relationship “An in factor this case is the between parties. express purpose the Defendant had come to his office the professional rendering aid to the victims of an automobile accident. He met a distraught baby totally dependent mother with an unconscious who was diagnose baby’s something

him to condition and do about it. Defendant professional obligation they dealing was under a were not at arm’s — length.” 259 Or at 60. itself, building a landlord to demolish a from which began previous to evict after attempted plaintiff, he had physi encounters in which defendants threatened and used friends, against plaintiff cal force or her and the court held question deliberately it a whether jury this was done up apartment, so, intimidate into her and if giving beyond whether defendants’ choice of means “went person outer limits of what a reasonable position expected should be to tolerate in an arm’s-length dispute.” 287 Or at 458.

These cases show that there are at least three distinguishable facing issues a trial court in a like the case present. The first is whether the relationship between a defendant and the victim of the alleged tort is one that imposes on the defendant a greater obligation to refrain subjecting abuse, from the victim fright, or shock than would true in arm’s-length among strangers. encounters The character of the relationship bears on the mental required impose liability, element compare Rockhill with Brewer, Turman issue, and also on the next offensiveness of conduct crosses threshold potential liability, Clark, see Pakos v. supra. facing

The second issue a trial court is whether the defendant, acts alleged against proved, qualify extraordinary conduct which a reasonable could find beyond socially behavior, the farthest reaches of tolerable condemnatory may whatever terms this be characterized. issue, course, The third is whether there is evidence from jury may disputed which a reasonable find that a relation- ship engaged fact existed and that the defendant in fact meeting in conduct the second test. law, much way, the same another put point

To factfinder, cases, judge, on the negligence as in calls kind what questions. kinds of One concerns to decide two did, intent, and to extent his the defendant with what what These emotional distress. acts caused the severe fact- Assuming that each questions are of historical facts. whether shown, the other decision is ual element any rea- conduct exceeds offensiveness of the defendant’s judgment This is a limit social toleration. sonable It specific occurrences. social standards rather than *8 138 kind of for which the law does not demand judgment

the evidentiary required the same basis that reconstruct- distinction, however, this ing disputed Despite events. each judicial issue is to decision in the familiar manner subject only when factfinders could reach one conclu- reasonable Clark, evidence. the court in Pakos v. sion the As stated supra: determine, “It for the trial court to in the first

instance, may reasonably the whether defendants’ conduct regarded outrageous permit as so extreme to recovery. If the minds of reasonable men would not differ obliged subject grant on the the court was to order of an nonsuit, in this involuntary case was done.” 253 Or at 132. Application to case.

III. case, In rules applying present these to the the positions. issue, On the parties following take the first relationship employer that between plaintiff contends imposes demanding obligations more to employee than inflicting refrain from mental or emotional affronts strangers. support There for this view. apply between shouted racial allegedly epithets When foreman abusive an subse employee, course of who discharging arbitrator, by reinstated an the California quently was as an Supreme “plaintiffs Court stated that status degree protec him to a employee greater should entitle stranger than he outrage tion from insult and were a Inc., Engineering, V. 2 Cal 3d defendants.” Alcorn Anbro 498, 216, Rptr 88 The n. 468 P2d Cal pro employer’s potential responsibility view an same by the an from racial insults was taken employee tect r Zelle v. Crown Supreme Washington Court of Contreras (1977), in which Corp., 88 Wash 2d 565 P2d bach management personnel that accused employee alleged slurs and him of theft and also failed control racial employ employees. relevance ridicule other course, is not that form of relationship, ment confined view, from behav duty In our to refrain abusive abuse. that relationship comes closer to employment in the ior Pollard, supra, v. patient in Rockhill physician toward not in police officers toward citizen than to that of encounter, in Pakos v. custody free to terminate Clark, supra. lia- regardless whether contend

Defendants an actual relationship requires employment bility in the only reckless distress or severe mental to inflict purpose inflicted, pleaded neither the distress disregard transgress find to could conduct proved nor further conten- in this tort. Their the law sets limits which *9 of emotional distress did not show plaintiff are that tions was conduct and that defendants’ required magnitude investigating in the context of privileged justified error, that losses; also, by cross-assignments register cash jury instruct on properly the trial court did not liability that required for character of misconduct imper- are or offensive words punitive damages insulting Green, 286 Or 593 P2d 777 missible under Wheeler v. is that defendant plaintiffs The crux of claim Co., Rummell, security of Meier & Frank as director of money and threatened her with stealing accused designed in a manner prosecution imprisonment example employees, her and make her an for other frighten his actual regardless made the accusation Rummell she subsequently as to her or innocence and that guilt belief put opportunity was under surveillance and was denied had successfully eventually so that she to sell merchandise on whether quit job. particularly her We focus attempted to threaten could find that Rummell he knew though as a deliberate tactic even frighten convincing did not have evidence of misconduct that he no by plaintiff made have part. charges her Two other tort. As- force to establish independent charting system would serted weaknesses of the a psychological intentional use as point divorced from its suspected employees. in confrontations with instrument assignments work Also, concerning plaintiffs the decisions acts encom- not the kind of episode to the were subsequent remedy rise to a may give acts passed by this tort. Such contract, but employment an individual or collective under evidence these plaintiffs view of under the most favorable inflic- as intentional qualify did not managerial decisions acts aggravated the kind of tion of severe mental distress all tolerable beyond find persecution that a could bounds of civilized behavior. respect alleged questioning, abusive

With pre- only plaintiff, Rummell, and Rummell’s assistant were interrogation, at the and most of evidence sent testimony. following of her own summarizes consists parts testimony supportive of her most of her claim. those security summoned Plaintiff to the store office. Mr. was security himself as a store officer. Rummell introduced Plaintiff felt that she was not free to leave. Rummell stood “large pieces paper” there were behind desk on which figures.” “a lot of on which she could see her name and shortages in her Rummell told register, there were stealing amounts that he knew she was substantial money help register, from the that he wanted to her but only help the truth. He said that she could her she told is; are to realize how serious a crime this “we seemed not by years punishable talking embezzlement, which is about jail.” that when she asked if Rummell Plaintiff testified money, yelled point thought stealing “he at that she was you stealing ‘No, have been a loud voice. He said money.’ we know ” proof right that he “had here” that she He said slapping stealing, with the his hand down on his desk figures, papers containing her name and the but without *10 going explaining papers the were. “He told me he was what my arrest next week if I didn’t tell to have a warrant for the truth.” testimony was denied or contradicted

Much of this present, jury persons but of course the the other two plaintiffs to the ele- version. Also relevant could believe testimony mind is his own that ment Rummell’s frame of only regarded guilt as one he her when he accused money possibility: stealing she was the “Either she was up setting making her to make mistakes or someone was guilty person.” He was uncertain that he her look like the plaintiff. explained He had used the the charts to had questioning employees on the basis of charts method of many getting confessions. When times and succeeded in money, he take the insisted that she did your good asked, is “then what her.” When “believed point, responded: “At that none.” chart?” he drawing Accepting and all reasonable all evidence jury’s verdict, the trial to the most favorable inferences judgment court was bound to do on motion for notwith- standing jury verdict, the could find that Rummell “proof’ plaintiffs guilt, knew that he did not have he knew he did not have evidence sufficient to have her arrested, that he nevertheless told her that he had sufficient proof charged to have her arrested embezzlement, and with pounded and that he shouted at desk, referring paper explain to sheets of he did not to her. although Moreover, the could infer that Rummell knew that the charts at most were evidence for one of several hypotheses, “proof,” coupled his insistence that he had with offering employee accepting “help” a choice between his prosecution, and a threat of arrest and were a deliberate systematic frighten employee tactic to threaten and into a confession. possible

This inference takes case over range the threshold into the within which a could interrogation decide that defendants’ method of was an extraordinary transgression contemporary standards of employee. suggest civilized conduct toward an We do not questioning employee suspected wrongdoing, an about even accusations voices, and raised suffice tort;2 for this many respects employment arm’s-length, remains adult relationship parties securing divergent between intent on joint rather appears than interests. But an additional element employee subjected when an to severe mental and emotional distress, not as an incidental effect of an unpleasant intentionally confrontation, but as a cold- explained ruling The trial court on defendants’ motion for a directed verdict: conduct, outrageous just, simply “As to the the conduct here is even if we accept Plaintiff, testimony really great there is not deal. The slamming Plaintiff testified to a raised voice and the of a hand on a desk and possibility sentence, jail indication of the of a warrant for an arrest or that, recall, really only significant testimony as I difference as to the incident. accepting true, *11 ignoring evidence, “Even that as I Defendants’ outrageous don’t believe this kind of conduct can be found to be the in kind of support damages,

the extreme that would an award of but Pm not confident enough having because of the turmoil the law is to want to risk to have the again. case tried over going record, jury complete “Pm to submit it to the and then we’ll have a say I outrageous but will this: If there is a verdict for the Plaintiff on the grant judgment notwithstanding conduct I will the verdict. . . .” scanty evidence.3 This interrogation upon blooded tactic inference, believed, takes the case closer to the debt if Billing v. Central Turman tactics involved collection Bureau, Inc., element here of the supra, with the further employment in the dependency employee of the relative say course, do not that defendants’ relationship. Of we in this case was tortious as interrogation conduct drawing if a all only jury, law. We hold matter of found an inten- plaintiff, inferences favorable to possible employee into tionally oppressive browbeating method this method went confession, decide that it could also socially employer tolerable beyond the outer bounds practices. cross-assignments: Instructions.

IV. Defendants’ cross-assignments certain presented Defendants the trial Appeals, affirming error which the Court defendants, did not need to reach. decision for court’s insufficient the decision that there was Because we reverse verdict, must reach them we support evidence to here. cross-assignments two concern

Defendants’ first The trial instructions. requested jury the denial of certain following in the terms: the tort for the court defined who, outrageous in the through conduct which is “One extreme, intentionally recklessly severe emo- causes another, liability subject for such tional distress to emotional distress. here Plaintiff establishes

“Plaintiff can recover following:

“First, the Defen- outrageous conduct extreme and dants; inten-

“Second, engaged in such conduct the Defendants recklessly; tionally or

“Third, distress suffered severe emotional that Plaintiff conduct.” as a result of such have would requested instructions of defendants’

One stated: conduct also carries defendants’ distress as a tactic Deliberate infliction of permissible employer’s legal rights insisting “in a

beyond privilege knowledge to cause emotional way” insistence is certain “that such even with (Second) g. distress,” quote § comment Torts from Restatement as defendants *12 only

“Liability outrageous for the tort of conduct exists outrageous has been so where the conduct of the defendants character, degree, beyond in in and so extreme as to be utterly pale decency, regarded and to be as atrocious and society.” in a civilized intolerable declining give trial did not err in to

The court appellate neither the instruction. It should be recalled that jury proposed draftsmen of uniform instructions courts nor prescribe a the first the exact form in which in instance explain jury. argue judge a Defendants trial must the law to given by court in that more than the definition the trial provided, jury pointing out that this case should be requested explanation “outrageous additional of the term may extreme.” behavior This well be true. As we adjectives degree “outrageous” said, have such as may they helpful, art; “extreme” but are not words of they may used as isolated terms of condemnation substitute indignation required mere for the attention to the intent inflicting by socially and the effect actual severe distress might go explain A intolerable means.4 court well further to judgment required jurors the nature of the social under “outrageous” such rubrics as or “extreme” in the context of type epithets them, of case before if it uses these at all. But defendants’ instruction would not contribute to such an explanation. proposed heighten required It level of indignation by adding “outrageous” and “extreme” such “utterly.” additional modifiers as “atrocious” and This epithets would revert to the contest of found to be “of minimal aid” in Rockhill v. which the court supra,

Pollard, 259 Or at 60. requested by

Two other instructions defendants sought express distinction between “extreme out rageous annoyances affronts, conduct” and mere or for Ordinarily, which defendant would if a not be liable.5 4It also deserves attention whether both “intent” and “recklessness” fit potential issue; case, liability particular relationship defendant’s in the at in this instance, possible it is the deliberate inference of infliction of distress as brings range tactic that the facts within the condemnation. Defendants did object “recklessly” to the in the inclusion of court’s instructions. requested instructions were: “ merely indignant, unbecoming annoying, insulting, ‘Conduct which is employer outrageous of an is insufficient to constitute extreme conduct.

“ ” annoyances dignity.’ ‘Plaintiff to her cannot recover for affronts elements that it must find correctly instructed on those conclusion, a court need not an affirmative order to reach version of various opposing and submit the side’s go further disputed to reach the that would not suffice circumstances helpful find it to do Perhaps a trial court would conclusion. present, like the which calls for explaining tort so have not and commentators degree that courts judgment mentioned previously Given the easy found to articulate. very different synthesized to describe fact that the tort variety in a of different set- actionable conduct kinds of formula single to search for a verbal tings, may it be unwise recovery for every case in which seeks to cover may distress. It therefore infliction of emotional intentional tort explanation include in the improper not be *13 suggested limits of its reach as indicating the phrases some say that instruc- negative But we cannot by defendants. or so were either so correct6 proposed tions defendant error. give failure to them was reversible essential damages V. Punitive also as error the trial court’s assign Defendants claim for motion to remove denial of their consideration, for two jury’s from the punitive damages punitive is not a case for They contend that this reasons. conduct, even if found first, defendants’ damages, because second, and tortious, sufficiently aggravated, was the verbal commu tort consisted of because the asserted accusations, legal and threats questions, nication of compensation but not actions, only support which could Green, v. decision in Wheeler under this court’s punishment Or 593 P2d 777 court at a cases reached this of the earlier None support to of evidence involving adequacy stage jurisdiction clear that in a But it seems punitive damages. inten- punitive damages grave allows which generally aré allowable torts, damages principle punitive tional transgression “extraordinary” or “extreme” an when instruction, supra “indignant” proposed is out of n. the word In the first alone, instruction, standing description would place The second of “conduct.” as a “annoyances” excluding even overly and “affronts” all and inexact be broad causing severe distress. with the result of inflicted with the intent and when indispensable social norms is an element of itself. the tort correctly When the liability on instructed that element of compensatory punitive damages, as well as on support liability, there evidence to its verdict as to little tort leaves room to scrutinize the facts for an degree aggravation support punitive additional damages. to Application point of defendants’ to second this case complex. supra, Green, is more Wheeler v. a defamation punitive damages. case in which a appeal, had allowed On unanimously Oregon this court held that the Con guarantees remedy injury stitution, which for actual from punitive damages defamation, also denies for even defama tory expression. holding rested on a careful accom Rights. modation two sections of the Bill of I, Article guarantees expression opinion” section “the free right speak, freely print any subject write, “the to or subject responsibility whatever,” “for the abuse of this right.”7 every guarantees person I, Article section 10 “a remedy injury in due course of law for done him in his person, property reputation.”8 or Wheeler v. Green found proper interpreting responsibil accommodation in ity for abuse which section 8 excludes from freedom of speech responsibility injured party for the “injury person, property, reputation” done him in his beyond compensa stated in section 10. It does not extend injury punishment tion for the or deterrence. The court wrote: *14 statements, course,

“Defamatory throughout of have the history recognized of this state been as an abuse of the expression right person of free for a which is to be held responsible I, However, provisions under the of Article 8.§ ways may when consider the in person we which a be held responsible in a defamatory speech civil action for or 7 Const, I, Or 8: art § passed restraining expression opinion, “No law shall be the free or restricting speak, write, print freely whatever; right any subject the to or person every responsible right.”

but shall be for the abuse of this 8 Const, I, Or art 10: § secret, administered, justice openly “No court shall be but shall be and purchase, completely delay, every

without and and without man shall have by remedy injury person, property, due for done him in course law his or reputation.” I, provisions writing, § must consider the of Article we also every remedy by guarantees person a ‘due course * ** reputation.’ injury him in his of law for done Constru- I, provisions together of Article both of which ing these two cases, in hold bearing a direct on defamation we that have damages, civil the defendant who a common-law action for defamatory by right expression the of free has abused may responsible only held to the extent of statements be resulting injured party to recover for the permitting the is, compensatory to injury reputation to recover —that damages. punishment damages are for and deterrence] “[Punitive necessary punishment is nor deterrence of others Neither injury reputation.” compensate plaintiff for to to the above, holding, at as stated principle Or 118. by beyond what- punitive damages go definition that plain- a proper compensate recompense ever financial is by plaintiff personally. the injury tiff for suffered damages beyond any actual are allowa- injury Where such ble, public punish- collects them as a form of ment, personal compensa- not virtue of entitlement liability of defendant’s his “abuse” tion. When the cause defamation, expression, as in the case of speech and “responsibility v. for the Wheeler Green holds that liability compensation only. for abuse” is confined to civil plaintiffs rather than her person Here the was to injury as resulted from an “abuse” of reputation, long it but only, principle is the same. speech expressions,

Clearly Mr. Rummell’s words “abuse,” testimony, were an not believed in against defendants made unlike the accusations distinguish the rule v. Plaintiff seeks to Wheeler Green.9 trainer, plaintiff, forging in Wheeler v. Green accused horse Defendants personnel. bribing their race checks expressions Obviously here were Mr. Rummell’s words and we do not hold that defamatory I, any speech” privileged more than the “free under art section remedy legal v. expressions Wheeler Green. That would foreclose words and were, however, expression they speech altogether. only within We hold that “responsible section, employer meaning for the his were of that so that he and “remedy injury only allowing done” to under extent of abuse” I, many words, may for instance uses of art 10. It section historically crimes, excluded from were common law commission conventional prepared opinion, speaking expressing are but we § the reference 8 to say expression words. As accusations or other offensive true of the *15 “speech gravamen of Wheeler v. Green because is the of the according plaintiffs argu defamation,” tort of whereas, speech only ment, Mr. Rummell’s in this case was inciden tal to the tort of intentional infliction of severe emotional weight distress. The distinction would have if the tort in any this case rested on conduct other than Rummell’s interrogation. accusations to in the course of his Of course infliction of distress, emotional unlike defama by expression tion, can be committed other means than e.g., supra. See, communication. Erwin, Brewer v. But in qualify this case we have found no other conduct that could as this tort. jury’s above,

As stated our affirmance of the ver- solely possible by dict rests on the inference prosecution Rummell threatened with arrest and by referring “proof’ guilt of her which he himself thought compelling, less than and that he did so for the purpose upsetting deliberate her into a confession. But speech expression opinion, his accusations were even though jury they could find that were tortious in manner purpose gave remedy injury and done and thus rise to a civil for by put point the “abuse.” To in a nutshell: If presence Rummell had called a thief in the person interrogation, third at the the rule of Wheeler v. recovery Green would limit her for slander to actual damages punitive damages. and exclude If he had broadcast throughout published print, his accusation the store or it in damages might greater, punitive damages her actual but “remedy” would be excluded. The same distinction between “punishment” speech expression opinion punitive damages excludes when the accusation was made injury remedy to her face and the for which she seeks a emotional distress.

Accordingly, Appeals the decision of the Court of reversed and the case is remanded to the circuit court for entry judgment punitive of a on the verdict without damages. example” dissent, very

to the “horrible invented it is doubtful that the state constitutionally subject hypothetical speech punishment, could to criminal punitive damages analogue. are an

Reversed and remanded. LENT, J., concurring part; dissenting part. opinion respect I concur in the with majority judgment that defendants were not entitled to holding *16 notwithstanding plaintiffs plaintiffs judg- verdict and that compensatory ment must reinstated. I dis- damages for majority opinion sent from that part concerning following “browbeating” defendants’ conduct the incident majority’s concerning punitive damages. and the decision majority

The has found that the evidence of the present as browbeating its circumstances was such to plaintiffs theory recovery in jury upon case for the of tort. agree. majority on, however, I The 292 Or at goes With that stage P2d at to its of 637 set the for treatment punitive damage by stating that concerning plaintiffs assignments

“the work sub- decisions sequent episode the the of encom- were not kind acts passed by this tort.”

By seeks to establish that defen- ploy majority the of nothing speech dants’ tortious conduct consisted but so holding as to its the Constitution does support Oregon punitive Thus is formed permit recovery damages. not of by majority: the for later assertion the basis distinguish rule Wheeler v. Green “Plaintiff seeks to of defamation,’ ‘speech gravamen of because is the of the tort whereas, plaintiffs argument, Mr. according to Rummell’s speech only this case was incidental to the tort The dis- infliction of severe emotional distress. intentional weight the tort in this case rested on tinction would have any plaintiff than Rummell’s accusations to conduct other ” added.) interrogation. (Emphasis in the course his P2d at 136. 146-47, 292 Or at 637 is not the defendants complaint Plaintiffs after the concerning assignments made her work decisions Rather, complains of defendants’ browbeating episode. she ongoing following episode being part conduct by It is a reasonable the evidence. tortious conduct1 shown may here concerned we are with which the tort has held that court This emotional severe cause the intended to of conduct of a course consist Inc., Bureau, Billing 568 P2d 279 Or v. Central distress. Turman decisions, result of but the conduct was the inference that her complaint conduct, the decisions concerns which led to the conduct. could have from which

There evidence employee following: at will and Plaintiff was found the discharge being subject to at her vulnerable as therefore employer’s had won certificates of excellence whim. She employer’s expense. training purpose at her courses offered training courses was fit they selling if and when became lines of cosmetics certain employer had that at such time she Her indicated available. had been one handle lines. Plaintiff would be the those average” supervisor, given rating “higher than her laudatory DuBrauer, and comments had been made other employer vice-president A about work. special had, and one other at a luncheon honor employee, presented plaintiff an award for excellent with job. good working enjoyed in her had service social She relationship and with with her co-workers DuBrauer. *17 findings support

The evidence after would that get Rummell, encounter with of employer gave failed a new line trained, she had been and her cosmetics which Later, her a false reason for that action. given another line was taken from her she was a reason and patently which was false to her. A she used to in showcase display resulting shampoo her, her line was from taken being prop- display goods her her not able to erly. drastically. employer’s security dropped Her sales Her people conducted almost constant surveillance of her. Her and her. co-workers DuBrauer ostracized She became so by all of this that she could not continue the distressed employment. entire of conduct is about the course

It just complained, but in in the evidence has entirely complaint. It in her second amended detail brazenly majority beyond state can me as how nothing Rummell’s on more than case rested conduct, of other There was an abundance accusations. shouting perhaps Rummell’s and table more subtle than pounding, harass- continuation of but nevertheless Eventually the incident. with that ment commenced which purpose of that conduct succeeded as became so employment distressed as to cause her to leave an formerly promised had so much to her. majority’s In the words, own that conduct affords distinguish the basis to our decision Green, in Wheeler v. 286 Or 593 P2d 777 majority puts

At 292 Or at 637 P2d at point example. example its in a “nutshell” use of an holding no more convinces me than does the of the case at suggest example: bar. I would another A man seduces a previously chaste adult woman. She is afterwards filled with rejects importunities engage remorse and his in further angered by upon Sunday sexual relations. He this, morning family long he enters the church she and her have presence family lifelong and, attended in the of her company assembled, friends and shouts out to her the get details of the sexual encounter. He intends to even with rejecting by causing her for him her severe emotional strictly distress. His statements are all true and would not support damages therefore an action for for defamation. immediately hysterical eventually She ops agoraphobia becomes devel- speech

as a result of defendant’s in the nothing Oregon church. I find in the Constitution or in supra, support holding Green, v. Wheeler which would nothing that because the defendant’s conduct consisted of speech, punitive but he would be immune from an award of damages should the trier of fact desire to make such an award. away plaintiffs

The decision in that case to take punitive damages award of was an accommodation of a party which, time, passage Sometimes one is a ato decision with the does logical compelling happens not seem so or the result so as one once believed. It highest even the court of this land. Sullivan], joined “Although opinion in New York Times I the Court’s [v. I *18 greatly regret opinion phrase

have come the use in that of the ‘actual ” malice.’ Lando, 153, 1635, Herbert v. (1979), Stewart, J., 441 US 99 S Ct 60 L Ed 2d 115 dissenting, L60 Ed 2d at 148. goes acquired I find that as time Ion have some reservations about our Green, (which authored) (1979), in Wheeler v. decision I 286 Or 593 P2d 777 present necessity formally my re-examining position but this case does not the of there taken. speech, grant the of freedom perceived conflict between Constitution, the I, Oregon of the Article section I, reputation, Article remedy injury preservation not conflict is Constitution. That Oregon section here, point. the case is not presented I dissent. J., joins opinion. in this

Tongue, DENECKE, J., dissenting. C. analysis the tort of

I the majority’s concur with the decision distress and intentional infliction of emotional However, I dis- are not awardable. punitive damages that majority that whether the defendant sent from the decision infliction of emotional committed the tort of intentional the jury. I affirm question was a for the would distress it the that Appeals of the trial court and Court decision not, a was as matter law. “out- frequently

The cause of action referred as amorphous The issue on conduct” is most tort. rageous by majority the stated the disagree majority which I with is defendant, if acts the alleged against be “whether extraordinary as proved, qualify conduct which reasonable socially beyond find the farthest reaches of jury could very ethereal stan- obviously tolerable behavior.” This is dard. by is illustrated

The indefiniteness of tort “Plaintiff can recover here instruction of trial court: First, out- following: extreme and Plaintiff establishes by suggestions the Defendants.” I have no rageous conduct instruction, that an precise apparent for a more but it practically the case without instruction such submits circumstances, guidelines. opinion these I am of Under one for the question whether case doubt rule that it should not be submitted jury, court should jury. to the not this case does why is another reason

There of the defendant present jury question. objective are lawful, it was commendable. We only completely crime, particularly collar” told the media “white consumers theft, problem is a national which costs employe *19 152

billions of dollars passed because cost on to the However, employers consumers. who the legitimate exceed criminal pay bounds of detection are to damages liable pursuant reasonably to existing well defined remedies such as false imprisonment, prosecution malicious and defama- v. Montgomery Co., Cribbs Ward & tion. 8, Or 202 272 P2d Co., Inc., v. Montgomery Ward & (1954); 978 220 Or Kraft 559, 315 P2d 348 (1960). (The P2d 92 1 ALR2d plaintiff in this a defamation; case count of alleged how- ever, count.) against found her on I that know of policy expand employe’s no reason to remedies in a case such as this. majority upon following

The relies evidence to support premise question go its jury. should plaintiff Rummell accused stealing, told her he would get a warrant for her arrest for crime which she could years jail, “yelled her,” serve “proof’ at and said he had she had The stolen. facts were that he had charts which shortages register indicated at the plaintiff when was work- ing responsible however, register; for the the charts were proof not conclusive that plaintiff any committed past, crime. In the employes confronted with similar charts addition, had usually according plaintiff, confessed. In plaintiff “thought Rummell somebody asked whether she might you setting up?” Plaintiff did not believe so. past decisions, majority

Our cited in the opinion, do require presents holding evidence is Turman v. Central question. Perhaps point closest Bureau, Billing Closest, Or 568 P2d 1382 because, case, in the present initially the defendant pursuing legitimate objective, collecting. case, bill In that however, satisfactory after had made arrangements pay the bill and the defendant no had a longer legitimate objective, the defendant its tactics. continued abrasive states, majority Professor Prosser was the

As “synthesizer” of reporter this tort and the for the Restate- (Second). ment of Torts comment 46 of to section Restatement, Conduct,” the section concerning “Outrageous states, in part:

“* * * enough It has not been that the defendant has criminal, acted with an intent which is tortious or even distress, that he has intended to inflict emotional or even by ‘malice,’ that his conduct has been characterized or a degree aggravation which would entitle the * * punitive damages for another tort. Restatement (Second) 46, p Torts & 73. my

In opinion this case present does not a jury question. If the had in fact embezzled funds from the register confessed, according to the logic of the majority it nevertheless jury question would be a whether the defendant had committed the tort.