Wisconsin HS Admin. and Intentional Infliction of Emotional Distress

By Michael GrossmanNovember 07, 2016Reading Time: 8 minutes

Students were awaiting morning announcements, when over the a Brodhead, Wisconsin school's PA system, they were informed that four of their classmates had been killed in a car accident. Having heard announcements of other student's deaths when I was an high school, I can only imagine the shock, confusion, and strange array of emotions that overcame the students upon hearing the news.

The problem is that no students had been killed, or even injured in a car accident. A short time later, another announcement was made claiming that the prior announcement was part of a dangerous driving lesson. Understandably, many of the students sorrow turned to anger at the tasteless hoax. School administrators have since defended their actions on the grounds that only a few parents complained.

While there has always been a "tough love/scared straight" constituency in this country, these methods are often in poor taste, counterproductive, and in the case of this Wisconsin high school, possibly unlawful. The particular cause of action that may arise from the school's action is alternately known as intentional infliction of emotional distress or negligent affliction of emotional distress. The former term is used here in Texas and Wisconsin employs the latter.

I can already hear the the cries of "frivolous lawsuit," "wussification of America," etc. coming from certain circles. This misses the point of this area of the law. These laws acknowledge that some behaviors are so beyond the pale, capable of causing people such profound distress, that victims are entitled to compensation for the costs of any subsequent mental health treatment and their mental anguish. As with any area of the law that doesn't involve obvious physical damage, obtaining compensation for mental anguish and associated mental health costs can be an uphill battle in any courtroom.

What is Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress occupies a strange place in civil litigation. It is what is known as a "gap-filler" tort. This means that it can only be used in the event that there isn't another more relevant claim to be brought. In short, while someone running a stop sign and hitting you can inflict emotional distress, there are already perfectly valid causes of action that already cover such an event.

This cause of action recognizes that sometimes people commit bizarre, cruel acts, whose primary purpose is to terrorize others. These acts don't necessarily rise to the level of criminal acts. A great example would be the recent "creepy clown" phenomenon. While the wannabe clowns aren't doing anything that is illegal in most instances, their purpose is to make people uncomfortable, agitated, or to generally inflict distress on others in the community.

A more down to earth example would be, suppose that I got a real kick out of scaring the ladies in my apartment complex. Bizarro-Jeff finds nothing funnier than finding ways to scare the heck out of the women who live in my apartment complex. To that end, I decide to cut up some of my clothes and pick up some fake blood from a local novelty vendor. Fully-attired and covered in fake blood, I pick really creepy places like stair-wells and the parking garage to lay in wait, until the women in my building came home from work, or better still from a weekend evening out having fun.

Bizarro-Jeff then jumps out from behind my carefully concealed positions to scare the heck out of these unsuspecting women. Assuming that they don't fear for their lives and shoot me (it is Texas after all), it's hard to see what crime I would be committing. Certainly, the building I live in could find this behavior and objectionable, but their probably isn't much the police can do, especially if I am not armed during my sick pranks.

We could assume that a fair portion of the women who were "surprised" by this prank would be over it in a few minutes, but for some it is equally likely that they would suffer the same trauma from my simulated ambush as they would if they had actually been attacked. Just as the police would have a tough time prosecuting me for breaking a law, these women would have no means to recover the costs of therapy, apartment surveillance systems, or whatever they needed to get rid of the anxiety that just around every corner is a weirdo who is going to jump out and attack them.

That's where intentional infliction of emotional distress comes in. We intuitively know that I shouldn't be creating elaborate plots to traumatize my neighbors, but we can't make laws for every bizarre scenario that the human mind can concoct to terrorize others. That's where this claim steps in to fill the missing gaps in the law.

Intentional infliction of emotional distress has four elements in Texas; They are:

  • The accused acted intentionally or recklessly.
  • The accused's conduct was extreme and outrageous.
  • The actions of the defendant caused the plaintiff emotional distress.
  • The emotional distress suffered by the plaintiff was severe.

For folks who cannot conceive of how someone could get compensation for the intentional infliction of emotional distress, I would urge them to think just how difficult it is for most people to meet the four elements of this claim in Texas. Extreme and outrageous is a pretty high burden for a plaintiff to prove, when you couple that with the requirement that the emotional distress has to be severe, you get one of the higher bars to clear in civil law.

At most, this portion of the law doesn't apply to 99.9% of the stressful situations people encounter in their lives. In fact, when one looks at how these cases proceed in the court system, the vast majority of intentional infliction of emotional distress claims are dismissed because there is another more relevant cause of action. Of those that survive the court's scrutiny, few can satisfy the necessary case elements.

These realities and an implicit bias against non-physical injuries, mean that this cause of action only works for the most extreme cases. When we examine the behavior of the Brodhead high school administration's behavior in the fake death announcement scandal, it becomes clear just how high this burden is.

The Brodhead High School and Intentional Infliction of Emotional Distress

While the exact elements may vary slightly from Texas to Wisconsin, we can still use the Texas elements of intentional affliction of emotional distress to analyze how likely it is that the administration may have acted unlawfully.

I think it's pretty obvious that the administration both acted intentionally and recklessly. The entire point of their exercise was to provoke an extreme emotional response in order to teach a lesson. Supposedly enlightened people used to mock the fire and brimstone sermons of various churches as ineffective means of terrorizing churchgoers into morality. As the "do this or die" sermon has fallen out of fashion within the religious community, it has taken off within our schools.

It is not unusual for high school students to have guest speakers battling HIV, be shown movies of gruesome car wrecks, and be told that using drugs a single time will lead to a lifetime of addiction and dependence. People may wonder about the increased skepticism of young adults to expert opinion and analysis, but I don't think one has to look much further than unfounded scaremongering by people in positions of authority during their teenage years to see part of the problem.

With the recklessness of the school administration's announcement of false deaths on pretty firm ground, the next element to be examined is whether or not their behavior was extreme and outrageous. To answer that question, we have to apply the reasonable person standard and determine if a reasonable person would find the behavior outrageous.

Rather than directly addressing the act of telling an entire school that 4 people were dead, when no one was, I would instead ask you to consider how would most people react if a person they trusted called up and said some people they know just died in a car accident? I'm sure most of us would be shocked to hear of such sudden, unforeseeable deaths. If that same person called back a few minutes later to say that it wasn't true, they just wanted you to think about texting and driving, I'm pretty sure that a good many of us would rightly be furious. Why would be furious? Because it is outrageous behavior to say that people died when they didn't.

While some may contend that emotional distress is for the weak, the fact is that even the most hardened among us experience it. These kids don't have to be delicate post-millennial snowflakes to be disturbed by someone saying that 4 of their classmates just died. It was probably equally disturbing when they found out it was all a ruse.

So far, so good, the first 3 elements are easily met. Things get much less clear when we get to the 4th element. While it isn't difficult to argue that any of the students in the high school suffered some emotional distress, it becomes much harder to argue that it was severe. As mentioned before, the vast majority of students are probably fine. However, it's not too difficult to envision scenarios where some of them might have distress that might affect their lives and require the help of mental health professionals.

We recognize as a society, that some topics of discussion and subject matter is inappropriate for children, depending on their age. Suppose we tweak the scenario a touch and instead of the announcement to high school students, a kindergarten teacher decides to show kids Alien. I think we can all agree that Alien is one of the more terrifying movies ever made and entirely inappropriate for 5 and 6-year-olds. If this were the fact pattern, I think it would be much easier to see how severe emotional distress could result.

Returning to the actual fact pattern, just because it seems unlikely that the reaction to the school's fake death announcement is unlikely to be as severe as showing horror movies to small children, we're still dealing with kids between 13 and 17-years-old. I know a few adults who would panic if they received such news, so it is plausible that at least a few of the students could have experienced severe emotional distress.

If any of the students did suffer severe emotional distress, then the school's actions would technically be unlawful and the affected students may be eligible for compensation.

Schools and Intentional Affliction of Emotional Distress

It would be nice if administrators could evaluate their own actions with the same consideration for student safety that they apply to students. What I mean by this is that throughout their schooling years, students are constantly told not to run through the hallways or engage in a myriad of other dangerous behaviors because someone might get hurt.

However, when a brilliant administrator or teacher has an idea that at the very least is in poor taste and quite possibly dangerous, shouldn't any potential excitement over a dubious teachable moment be overwhelmed by the same common sense and restraint that administrators expect students to exhibit? It's difficult to imagine a scenario where a student started a rumor, or put up fliers that 4 students had died without the administration taking action.

It's even more disturbing that the administration seems to measure whether something is right or wrong based upon how many parent complaints they've received. Given the number of decisions schools are required to make that will fly under most parent's radar, their should be a higher standard than whether or not parents have to call to complain. It's reasonable to assume that if a student did the same thing and tried to argue that only a few students or parents complained, it wouldn't carry much water.

I'm not suggesting that based upon what has been reported so far that their is a sure-fire slam dunk potential lawsuit due to the administration's actions. At the same time, it should be clear that the administration's actions were reckless and have the potential to expose the school to meritorious lawsuits. This isn't about being litigious, but holding the school accountable for its absurd "teaching technique."

Certainly distracted driving is a growing and serious problem. It is especially problematic for teenagers who have far more experience operating a cell phone than a motor vehicle, but much like the rest of the education process, the solution isn't a "scared straight" measure, but the slow, painstaking process of repeating a message until kids get it. We don't teach kids multiplication tables by threatening them with their own mortality, why would we try to teach any other lesson that way?