This is an action for intentional infliction of emotional distress (IIED) brought against defendant, who became sexually involved with plaintiffs wife. The trial court granted summary judgment in favor of defendant. Plaintiff appeals and assigns error to that ruling. We review the trial court’s entry of summary judgment to determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C;
Jones v. General Motors Corp.,
The material facts are not in dispute. Plaintiff and his now-former wife were married and had two children. In 1996, plaintiffs wife worked as a receptionist for the preschool at the church that her family attended; later, she became the church’s scheduling coordinator. In that subsequent capacity, plaintiffs wife worked closely with defendant, who also was employed by the church and was married with children. Plaintiffs and defendant’s families occasionally socialized together.
In April 1997, plaintiffs wife consulted with an attorney for information regarding legal separation after plaintiffs second arrest for DUII. At plaintiffs wife’s urging, she and plaintiff sought marital counseling from pastors affiliated with their church, which they had also done in 1993. In early May, plaintiffs wife became sexually involved with defendant, meeting him a few times at her house while plaintiff was away. Plaintiffs wife told plaintiff about the relationship later that month, and they separated in July. At one point after the relationship began, plaintiff approached defendant at his home and requested that defendant discourage plaintiffs wife from continuing the relationship with defendant. During that summer, plaintiffs wife discovered that she was pregnant with defendant’s child and, in the fall, she filed for a marital dissolution. Meanwhile, defendant reconciled with his wife after a separation, and the relationship between defendant and plaintiffs wife ended that winter.
*23
Plaintiff brought this action for IIED against defendant,
1
alleging that defendant intentionally engaged in outrageous
conduct
— i.e., conduct that was an extraordinary transgression of the bounds of socially tolerable behavior— that caused plaintiff severe emotional distress.
See McGanty v. Staudenraus,
With respect to the outrageousness element of IIED, we review to determine whether the conduct constitutes an “extraordinary transgression of the bounds of socially tolerable conduct
"Franklin v. PCC,
The
Restatement (Second) of Torts
and treatises use terms such as “outrageous” and “extreme” to describe conduct actionable as IIED, but the facts of decided cases convey more than adjectives do to guide our analysis of this element. Various factors bear upon the offensiveness of the conduct, including whether a special relationship exists between the defendant and the plaintiff, such as that of physician-patient, counselor-client, or common carrier-passenger.
Williams v. Tri-Met,
It is helpful to our analysis here to consider an earlier decision of this court regarding an IIED claim within the familial context. In
Hetfeld v. Bostwick,
This case involves similarly unfortunate but not uncommon behavior. Viewing the facts in the light most favorable to plaintiff, the nonmoving party, the record presents this scenario: Defendant entered a consensual extramarital relationship with a coworker, plaintiffs wife. They continued that relationship for some months despite plaintiffs appeal to defendant to discourage plaintiffs wife from doing so. The relationship resulted in a pregnancy, and plaintiffs wife ultimately left her marriage with plaintiff. The question that this case presents is whether, in light of the circumstances, a reasonable jury could find that defendant’s conduct was an extraordinary transgression of the bounds of socially tolerable conduct.
*25 The reality is that the circumstances here are far from extraordinary. When a marital relationship breaks down, a common cause — or effect — is an extramarital relationship by one or both marital partners. For better or worse, society tolerates extramarital relationships. That is not to say that society condones them, but it is clear from the treatment of such relationships in the entertainment, art, and news media, for example, that society at least tolerates them. That fact is reflected in our laws as well. State legislatures across the nation have abolished the torts of criminal conversation and alienation of affections, 2 as did Oregon in 1975. In addition, nearly all states have established no-fault marital dissolution laws.
The mutuality of the relationship at issue in this case also is significant to our analysis. There was no evidence or even suggestion of deception, coercion, overbearance, or ulterior motive on defendant’s part. To the contrary, the evidence indicates that plaintiffs wife took at least equal initiative in starting and continuing the extramarital relationship. Plaintiff endeavors to distinguish this case as “much more than marital infidelity among strangers” by attempting to construct a heightened “obligation” on defendant’s part to refrain from the conduct because an “association” existed between plaintiff and defendant and the church. Plaintiff’s apparent point is that, because the parties knew one another socially and through the church, the outrageousness of defendant’s conduct is magnified. In other words, their social friendship is a type of aggravating factor. Nothing in the record, however, reflects a fiduciary or other special relationship, nor is there anything inherent in plaintiffs and defendant’s acquaintance with each other that gives rise to an obligation to exercise a greater degree of care. Furthermore, we find no other factors to distinguish this situation from other extramarital relationships arising from social settings or from the workplace. As we held in Hetfeld, it is not outrageous in the extreme for people to behave as they often do in *26 commonly occurring circumstances. We recognize that marital infidelity may potentially disrupt marriages and personal lives. Nevertheless, in situations such as this one, the conduct is not socially intolerable and does not rise to the extraordinary level required for an IIED claim.
Plaintiffs reliance on
Spiess v. Johnson,
On appeal, this court addressed whether, instead of stating a claim for IIED, the complaint merely alleged disguised claims for the abolished torts of criminal conversation and alienation of affections. Id. at 294. The applicable standard of review limited us to the four corners of the complaint and bound us to accept all of the plaintiffs allegations as true. We held that the complaint sufficiently alleged a claim for IIED because the nature of the loss alleged (i.e., intentionally inflicted severe emotional distress) was distinguishable from the loss to be redressed by the abolished torts (i.e., loss of a spouse’s society and companionship). Additionally, we *27 were unwilling to conclude that, as a matter of law, a reasonable jury could not find that the conduct as alleged was not outrageous. Id.
This case provides a more developed record from which we can evaluate the evidence than did the procedural posture of
Spiess,
where we were limited to accepting the factual allegations of the complaint as true. On review of this record, it is clear that the allegations in
Spiess
and the evidence here differ in notable respects. As we have already discussed, no fiduciary relationship existed here — either between the parties to the extramarital relationship or between the parties to this action.
4
A sexual relationship in the context of a breach of fiduciary duty might increase the degree of outrageousness of the conduct.
See, e.g., Erickson,
In sum, the evidence here is that defendant and plaintiffs wife agreed to enter an extramarital sexual relationship. They met a few times at her house; they continued the relationship elsewhere to some degree while they were both separated; they did so despite plaintiffs expressed wish to the contrary; and the relationship resulted in a pregnancy. Certainly, no single act shown to have been committed here was “outrageous in the extreme.”
Patton v. J. C. Penney Co.,
*28
Affirmed.
Notes
Plaintiff also brought claims against the employer church on various theories. All of those claims were ultimately dismissed and are not before us on appeal.
The tort of criminal conversation is sexual intercourse with another person’s spouse. The tort of alienation of affections is wrongful conduct of the defendant that is intended to cause and that actually does cause the plaintiff the loss of the affection and consortium of, most typically, the plaintiffs spouse.
Plaintiffs counsel also repeatedly suggests that, because the trial judge in this case served as the defendant’s attorney in
Spiess,
his judgment may have been “influenced by his losing experience” in that case. That and other similar attacks on the trial judge are not appropriate. If counsel had a concern about the trial judge’s impartiality, there were appropriate mechanisms for counsel to raise them at trial, but counsel did not do so. The timing and form of counsel’s remarks on appeal render them “gratuitously disparaging comments” that we have condemned in past cases, as we do here again.
See, e.g., Castro v. Ogburn,
1 Although defendant happened to be a children’s pastor at the church that plaintiff and his wife attended and at which she worked, the trial court specifically ruled that no fiduciary relationship existed between plaintiff and defendant or between plaintiffs wife and defendant. Plaintiff does not assign error to that ruling on appeal.