In teaching torts, I begin my discussion of the intentional infliction of emotional distress by having students write in their notes “not everything is the infliction of emotional distress.” The reason for the cautionary line is that law students tend (particularly on exams) to call any insult an infliction of emotional distress, ignoring the elements of the tort requiring severe forms of conduct or speech to qualify. That line came to mind in reading the recent decision of the Utah Court of Appeals rejecting tort claims, including an IIED claim, in Keisel v. Westbrook. The case involves Russell Westbrook, the Thunder’s point guard who reacted angrily to the taunting of Shane Keisel, a Jazz fan, at a game in March 2019. Keisel brought an array of tort claims that have now been correctly rejected by the courts.
The incident arose during the game when Keisel (who was sitting next to his girlfriend Jennifer Huff) began to taunt Westbrook from a few rows up from the court. Keisel said something to Westbrook that included the phrase “on your knees.” … [In response], Westbrook shouted: “I swear to God, I’ll f**k you up, you and your wife, I’ll [f**k] you up, … I promise you on everything I love, on everything I love, I promise you.” As noted in the interview below, Keisel insists that he never swore at the player and was simply encouraging him to calm down.
Keisel then went to a real court to allege that he was defamed and left in a critical state of emotional distress from the encounter. Yet, on an IIED, a plaintiff must show that the defendant “(a)intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality; (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result; and (c) that severe emotional distress resulted as a direct consequence of the defendant’s conduct.”
The court of appeals described that this tort does not arise from conduct that is merely “unreasonable, unkind, or unfair” but must be “so severe as to evoke outrage or revulsion.” In other words, not everything is the intentional infliction of emotional distres.
Even with the claim of negligent infliction of emotional distress, the conduct must “must be severe; it must be such that a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” Thus, even though the outrageous conduct is not needed as an element, it still covers conduct well beyond the pale to establish a severe response.
Moreover, the court rejects the claim that the couple felt physically intimidated by Westbrook’ words.
“when confronted with claims like these, a court must be capable of distinguishing between actual threats of violence and something that was merely profane posturing. Here as elsewhere, context is key.
As recognized by the district court, Westbrook’s outburst occurred “in the presence of security personnel and thousands of spectators,” and Westbrook was separated from Keisel and Huff by several rows of spectators. As also recognized by the district court, Keisel and Huff then ‘remained in the Arena to watch the rest of the game,’ a choice that belies any suggestion that they really thought there was a ‘real risk that Westbrook would make good on his threat.'”
Similarly, the court rejects vague claims of a “power imbalance between them and Westbrook.”
The court correctly notes that such exchanges are regrettable but not actionable in our society:
“Profane outbursts are of course unfortunate and disfavored in civil society. But even so, courts commonly hold that, without something more, a profane outburst isn’t enough to sustain an intentional infliction of emotional distress claim. See, e.g., McGrew v. Duncan, 333 F. Supp. 3d 730, 742–43 (E.D. Mich. 2018); Jiminez v. CRST Specialized Transp. Mgmt., Inc., 213 F. Supp. 3d 1058, 1065–66 (N.D. Ind. 2016); Walker v. Mississippi Delta Comm’n on Mental Health, No. 4:11CV044, 2012 WL 5304755, at *9–10 (N.D. Miss. Oct. 25, 2012); Lawson v. Heidelberg E., 872 F. Supp. 335, 336, 338–39 (N.D. Miss. 1995); Groff v. Southwest Beverage Co., Inc., 997 So. 2d 782, 787 (La. Ct. App. 2008); Lombardo v. Mahoney, No. 92608, 2009 WL 3649997, at *1–2 (Ohio Ct. App. Nov. 5, 2009). And while we’re aware of no similar case that arose in the negligent infliction of emotional distress context, we believe that a similar result would likely be reached if such outbursts were assessed under the “severe” conduct rubric that’s used in such cases.
Moreover, in assessing any emotional distress claim, a court must of course consider the context in which the offending conduct occurs. Words that might be outrageous or severe if spoken at a funeral may well be interpreted differently if they are spoken by the proverbial sailors at sea….
Westbrook’s outburst occurred at a professional sporting event, a place where society has unfortunately come to expect some amount of intemperate behavior. And the outburst at issue also wasn’t unprovoked. Again, Keisel admitted that Westbrook was responding to an initial statement from Keisel that could have been understood as a sexual if not homophobic slur. These details of course change the calculus as to whether Westbrook’s response was so outrageous or severe that it could support an emotional distress claim.
…
[P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.[“] While this comment from the Restatement [of Torts] was directed at the “outrageousness” element of an intentional infliction of emotional distress claim, the sentiment has some natural bearing on the “severe” element of a negligent infliction claim as well. And it largely explains why the profane statements from Westbrook do not support the claims at issue.
We certainly don’t condone what Westbrook said. Sports and society alike would be better off without such language. And for that matter, the other fans who were sitting nearby deserved far better from both Westbrook and Keisel. These two adults could and should have found a way to disagree better.”
With that, Westbrook succeeded in a slam dunk on all of the tort claims.
I was able to find this video of Keisel after the altercation. He denies any swearing or seriously taunting the player. He also calmly recounts how his comments were an effort to get Westbrook to calm down and that there was no provocation on their part. That could well be the case, but it does not help establish these tort claims. Indeed, the video could also be seen as undermining the claim that he was experiencing severe emotional distress after the encounter:
Here is the opinion: Keisel v. Westbrook
After dispensing with the legalese the courts message is clear. Shut up and watch the game.
It takes a special kind of desperate to say a judge “absolutely” must recuse from a case because of what someone else said about a different topic. J Raskin and his ilk are not reasonable people.
In that case, Trump and his ilk are not reasonable people either.
Ah-ha! The old “I’m rubber and you’re glue” argument. It’s like the freaking Algonquin Round Table around here.
Without the Civility Rule, the TURLEY BLOG has incrementally descended into complete ANARCHY.
Without Lincoln adhering to the Constitution, America has incrementally descended into a Third World communist s—hole.
LINCOLN WAS UNCONSTITUTIONAL AND THE EFFECTS OF HIS “REIGN OF TERROR” REMAIN UNCONSTITUTIONAL, INCLUDING THE “RECONSTRUCTION AMENDMENTS.”
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“STATES INCLUDED A CLAUSE IN THEIR CONSTITUTION RATIFICATIONS PERMITTING THEM TO WITHDRAW FROM THE UNION SHOULD GOVERNMENT BECOME OPPRESSIVE”
“Another argument in support of the right of secession involves the states of Virginia, New York, and Rhode Island. Readers may recall that those states included in a clause in their ratifications of the Constitution that permitted them to withdraw from the Union if the new government should become oppressive. It was on this basis that they acceded to the Union. Virginia cited this provision of its ratification when seceding in 1861. But since the Constitution is also based on the principle of coequality—all the states are equal in dignity and rights, and no state can have more rights than another—the right of secession cited by these three states must extend equally to all the states. This is a powerful argument about the Confederate States of America that has been taken seriously by many historians.”
– History on the Net
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SECESSION WAS NOT DELEGATED TO THE U.S., NOR PROHIBITED TO STATES, AND IS RESERVED TO THE STATES RESPECTIVELY, OR TO THE PEOPLE.
10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Nice try George, but the Supreme Court disagrees with you — See Texas v White (1869) — States do not have a constitutional right to secede. Feel free to bring a secession lawsuit or propose a secession amendment in 2024!
The clown show Supreme Court of 1869 was merely doing the bidding of “Crazy Abe’s” socialist successors and the nascent communists in America.
How’s that Robert Mueller Special Counsel investigation going for you? Russia, Russia, Russia, baby!
The totally corrupt Supreme Court of 1973 lied and defrauded America, “deciding” that immoral and disgusting abortion was a federal or constitutional right.
The Supreme Court of 2022 corrected that heinous judicial abomination.
You probably believe the preposterous juridical conclusions that a “spontaneous fuel tank explosion” brought down Flight 800, Oswald killed JFK, Sirhan killed RFK, OJ Simpson was not guilty, Roosevelt did not know the Japanese plan for Pearl Harbor, the North Vietnamese actually attacked the U.S. Navy in the Gulf of Tonkin, the FBI and CIA did not know about 9/11, etc., ad infinitum, ad nauseam.
Wait. I left out Santa Claus!
Please refute rationally and provide a citation wherein the Constitution prohibits secession, and that rights not provided to the U.S., nor prohibited to the States, are not reserved to the States, a la the 10th Amendment.
Please refute rationally and state that secession was not in the ratification documents of three states, availing those states of secession should the federal government become oppressive.
Of course, you cannot.
My, my! Some of these postings are getting rather crude and rude. Folks let’s try to keep some civility and decorum. I know we don’t always agree with each other, but going deep into the gutter should really be avoided.
Texas vs. White was decided after the civil war. What would the decision have been before the war? What would have been the answer to such a question at the Constituional Convention?
Updated 12/26 Lefty Wall of Shame aka The Lefty Turd Farm
The final tally for 2023 is here. Dennis aka Mr Alpha Bank has increased his hold on 2nd over The Lawn Boy, but Svelaz aka Mr Peetape still holds a commanding lead. (thanks anon for reminding me I needed to update)
Svelass aka Mr Peetape 22
Dennis McInlyre 9
Lawn Boy Elvis Bug 7
Gigi the LIAR 4
ATS 3
brandrunnerPoopy Head 1
Most Confederate soldiers were poor sharecroppers—-Dennis McInlyre aka Mr Alpha Bank
In Mcdonnell, SCOTUS narrowed the definition of what constitutes a benefit—Svelaz aka Mr Peetape
Gifts and payments to family are not “official acts” with regard to Joe Biden—Mr Peetape
(confusing quid with quo)
The 14th Amendment argument was put forth by the Federalist Society—Mr Peetape
It will be up to a GRAND JURY to decide if Hunter is guilty of contempt—-Svelaz aka
Mr Peetape
2 USC 192 is a congressional rule—Svelaz aka Mr Peetape
Congressional rules trump the 6th Amendment—Mr Peetape
Convictions for tax evasion are rare (its 2 per day)—-Mr Peetape
The inflation rate is coming down and is at 2.5% (it’s 3.1% and steady, 12/12/23)—brandrunner aka Poopy Head
Hunter and his lawyer have said they would comply with the subpoena—Dennis McInlyre aka Mr Alpha Bank
The 5th Amendment cannot be invoked in a court or criminal proceeding—Svelaz aka Mr Peetape
Hunter won’t testify. He will plead the 5th. (12/15)—Svelaz, aka Mr Peetape
Hunter wants to testify. He is not trying to hide anything. (12/18)—Svelaz aka Mr Peetape
A President can’t be convicted of a crime unless there is no doubt—Svelaz aka Mr. Peetape
R.C.A.W.T. was a good pneumonic—- Elvis Bug aka The Lawn Boy
(its mnemonic)
Nuclear ICBM’s are more accurate, the closer you are to the target.—*Elvis Bug aka The Lawn Boy
Hunter doesn’t have to testify because Comer changed his mind—Dennis aka Mr Alpha Bank
The quid has to be illegal for a quid pro quo to be illegal—-*Elvis bug aka The Lawn boy
If Joe’s quid results in Hunter’s quo, that’s not illegal—-*Elvis Bug aka The Lawn Boy
Inflation was on a rising trend from 2015 until Trump left office—-Elvis Bug aka The Lawn Boy
(1.3, 2.2, 2.5, 1.9, 1.3)
Comer said that the mere presence of shell companies is *proof* of a crime—-Svelass aka Mr. Peetape
Hunter Biden showed up for his hearing today—–Svelass aka Mr. Peetape
Hunter Biden agreed to testify to a public hearing—–Gigi the LIAR
(who did he agree with?)
The Consumer Price Index was indeed at 7.6% when Trump left office—–Elvis Bug aka The Lawn Boy (it was 1.4%)
Archer gave no details about the meeting at the Naval Observatory with Marc Holtzman—-Svelaz aka Mr Peetape
Archer had no idea what was on those phone calls. He admitted it under oath—Svelaz aka Mr Peetape
Evidence isnt permissible unless its incontrovertible—-ATS
Circumstantial evidence alone is not enough to convict——Svelaz aka Mr Peetape
Republicans are the only ones calling for violence these days—-Dennis
Democrats call for violence when the cause is right—-Dennis in the same post
Gas prices spiked because Texas uses crude oil to make electricity—-Gigi the LIAR
AR-15’s ruin the meat—-Dennis
The inflation rate was 8% when Trump left office—-Gigi the LIAR
(it was actually 1.4%)
Biden only released the strategic oil reserve once—-Svelass Mr Peetape
Archer never said it was Joe that was called from Dubai—-ATS
The State of Florida does property tax “appraisals”—-Svelass Mr Peetape
You can’t convict without incontrovertible proof—ATS
Trump was convicted of rape—Svelass Mr. Peetape
The Jefferson County school board has a supermajority of republicans—-lawn boy EB
Trumps attorney forgot to “check a box”——Dennis
An insult or name calling is not a personal attack—-Svelass Mr. Peetape
The DC NG answers only to the President—-Gigi the LIAR
Christianity teaches to treat your fellow man the same way you treat Jesus—-Svelass Mr Peetape
The ideal athlete is 6’2” and 175#—-Dennis
There is no way a fat person can shoot a 67 in golf—-Dennis
“Bright red Alabama is the “wild west”,” (when its bright blue Birmingham that accounts for 95% of the gun violence in Alabama)—-Dennis
That’s why McCarthy didn’t hold a vote. He was going to, but upon realizing he didn’t have the votes he chose not to hold one.—-Mr Peetape
McCarthy never said he didn’t have the votes.—-Mr Peetape.
*These statements are attributed to the booger eater, because they were posted by a green anonymous. If that clown wants to step up and claim ownership, I will change attribution.