Wednesday, January 30, 2013

Brower v. Ackerley case brief

Brower v. Ackerley
943 P.2d 1141 (Wash. Ct. App. 1997)
Tort Law

PROCEDURAL HISTORY: Plaintiff, the injured party, appealed the judgment of the Superior Court of King County (Washington), which entered a summary judgment dismissal of his civil claims of assault, negligence, and the tort of outrage against defendant telephone callers, who made anonymous threatening telephone calls to the injured party.

-Over a period of 20 months, P received harassing telephone calls at his home from the telephone callers.
-P feared for his safety and that of his family.
-He experienced feelings of panic, terror, and insecurity as well as sleeplessness and an inability to concentrate.

-The threats were not accompanied by circumstances that indicated that callers were in a position to reach the P or inflict imminent physical violence. 
-There was no proof of emotional distress.

RULES-To constitute civil assault, the threat must be of imminent harm.
-It is the immediate physical threat which is important, rather than the manner in which it is conveyed.
-The Restatement has a similar effect and states that the apprehension created must be one of imminent contact, as distinguished from any contact in the future.
-The Restatement gives the illustration that A threatens to shoot B and leaves the room with the express purpose of getting his revolver. A is not liable to B.

-The court affirmed the dismissal of the injured party's claim of civil assault.
-The threats, however frightening, were not accompanied by circumstances indicating that the callers were in a position to reach the injured party or to inflict imminent physical violence.
-The court also affirmed the dismissal of the negligent infliction of emotional distress claim.
-The injured party failed as a matter of law to establish physical symptoms evidencing and resulting from the emotional distress.
-However, the court held that the injured party was entitled to a jury trial on his tort claim of outrage. -A jury could find from the injured party's description of his acute and enduring anxiety that he experienced more emotional distress than a person should ordinarily be expected to put up with as a part of the price of living among people.

The court affirmed the dismissal of the injured party's claims for assault and negligent infliction of emotional distress against the telephone callers. However, the court reversed and remanded for trial on the tort of outrage, rejecting the argument that the injured party's alleged emotional distress was not severe.

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