Aleena Nikel: Outrageous Conduct

Yes, Officer Manden engaged in outrageous conduct when he interacted with Aleena Nikel. Conduct can be determined as “outrageous” by these five factors: (1) if there was a “special relationship” between the parties, (2) if the offended upon was “vulnerable,” (3) if the offender had an “ulterior motive,” (4) if the conduct was in a “public venue,” and (5) if the “character of the conduct” was sufficiently outrageous. House v. Hicks, 218 Or App 348, 363 (2008). Our client was in a special relationship with Aleena, she was vulnerable, and he appeared to have had an ulterior motive in his actions, so he will probably not be able to prove his conduct was appropriate.

FACTS

While several officers arrested a struggling suspect on the ground during

a protest, Aleena Nikel, a Citizens Watching Government member, stood nearby and recorded them. One of the officers, Officer Jeffrey Manden, noticed her and shouted for her to “Go away!” He closed the 15 feet of distance between them and pepper sprayed Aleena’s face from one foot away. Aleena Nikel sustained physical and emotional injuries that resulted in nightmares, severe anxiety, and a flare-up in her eczema. She presently wishes to pursue legal action against Officer Manden for her suffering.
DISCUSSION
“Outrageous conduct” is conduct that exceeds any reasonable limit of socially tolerable conduct.

Smithson v. Nordstrom, Inc., 63 Or App 423, 427 (1983). Five factors help determine if conduct was “outrageous”: (1) if there was a “special relationship” between the officer and Aleena Nikel, (2) if Aleena was a “vulnerable” person, (3) if Officer Manden had “ulterior motive,” (4) if the incident took place at a “public venue,” and (5) the “character [or nature] of the conduct.” House v. Hicks, 218 Or App at 363

(2008).
I. Officer Manden was in a “special relationship” with Aleena Nikel
Officers have a special obligation to citizens due to their “special relationship” with them, which is an element of outrageous conduct.

Johns v. City of Eugene, No. 6:16-cv-00907-AA, 2017 US Dist. LEXIS 22768, at *26-27 (D Or Feb. 15, 2017). Johns, a federal case applying Oregon law, held that officer-citizen’s special relationships gave the officers “a greater obligation” to abstain from exposing the victim to abuse, fright, or shock while “in arm’s length” encounters among strangers when forcibly removing a citizen from his[/her] home. Id. at 27.

Similarly, Officer Manden, due to his status as a police officer and hers as a citizen, was in a “special relationship” that required a “greater obligation” toward Aleena Nikel. Officer Manden pepper-spraying Aleena is comparable to the Johns police officers’ forcible removal of Johns from his home during his arrest because both involve a police officer exposing a citizen to abuse, fright or shock “in [an] arm’s length” encounter. Officer Manden violated these greater obligations when he sprayed her face from “twelve inches away”; well within “arm’s length.” Nikel, Aff. ¶

1.
However, Officer Manden could argue that he did not have a “special relationship” with Aleena Nikel, and because of this, he owed no special duty of care. Oregon cases have not established that a “special relationship” exists between police officers and citizens. Jordan held that a “special relationship” did not exist between an officer and citizen because in the cases where Oregon courts have explored “special relationships,” none were “convincing analogies” to an officer-citizen relationship. Jordan v. City of Eugene, No. 05-6164-TC, 2006 US Dist LEXIS 38839, at 32 (D Or June 12, 2006). Additionally, Jordan reasoned that after assuming the number of opportunities, Oregon courts have had to declare an officer-citizen relationship to be “special” and they did not do so, it should be understood that they did not do so for a reason. Id.
Jordan references because they had not located “a case in point” that declared a “special relationship” between an officer-citizen, and that because they had not found one, that it must not exist for a reason and they did not want to be the first to assert it themselves. Notwithstanding, if the assertion here is that a “special relationship” requires a “greater obligation” toward the other party and that relationships such as “landlord/tenant, psychiatrist/patient, supervisor/employee, or bus driver/rider's families” are convincing as “special relationships” themselves, then it begs the question of if we do not expect “greater obligation” from police officers to citizens, regardless of who is to be the first to say it.
II. Aleena Nikel was a “vulnerable” person

For Officer Manden to have engaged in outrageous conduct himself, his victim must have been a person who was particularly “vulnerable” to conduct that would cause emotional distress. House, 179 P3d at 740. A person who is not “especially sensitive, susceptible and vulnerable to injury” is not “vulnerable.” Turman v. Cent. Billing Bureau, Inc., 279 Or 443, 445 (1977). Turman held that a blind plaintiff was “vulnerable” to injury by “mental distress” from a collection agency agent’s verbal abuse over the phone. Id. at 445.
Similarly to Turman, Aleena Nikel was especially sensitive or “vulnerable” to Officer Manden’s pepper-spray. Aleena’s skin condition (eczema) is similar to the Turman plaintiff’s blindness because both involve a 1) physical condition that made the victim 2) susceptible to “mental distress.” Aleena’s skin condition made her vulnerable during her encounter with Officer Manden’s pepper-spray, which resulted in “mental distress” just as Turman’s plaintiff’s visual condition was a “vulnerability” during her encounter with the collection agency agent’s verbal abuse.
Officer Manden could argue that eczema is distinguishable in severity from the “vulnerabilities” seen in Turman or Checkley. Id. at 727 (in reference to the plaintiff’s brother’s disability). Turman’s plaintiff’s blindness and Checkley’s brother’s mental disability are both vulnerabilities to conduct that would cause mental distress could be argued to be more severe than a mere skin condition like eczema. Id. at 86. Turman noted that “extreme outrage can be found [if] ... the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress at the particular conduct.”
Officer Manden’s argument fails. Aleena’s eczema is a severe skin condition that is affected immediately and directly by his pepper-spraying her face, which uniquely qualifies her as a “vulnerable person.” The agitation caused to Aleena’s face could not only have caused severe flaring, but humiliation and embarrassment due to redness and inflammation.

III. Officer Manden had an “ulterior motive” in pepper-spraying Aleena Nikel

The officer must have had an “ulterior motive” in pepper-spraying a citizen to have engaged in outrageous conduct. House, 179 P3d at 740 (2008). An ulterior motive is one that is used to advance an “illegitimate” purpose. Id. at. 740. Checkley held that church members had an “illegitimate” motive because they defamed their mentally disabled plaintiff’s brother to further their “ulterior motive” of getting plaintiff removed from his brother’s guardianship and to acquire access to his funds rather than being concerned for the plaintiff’s well-being as was presented. Checkley v. Boyd, 198 Or App 110, 125 (2005).
Likewise, Officer Manden instructing an un-interfering Aleena to “go away!” and pepper-spraying her twice in a very close proximity, seems to demonstrate “ulterior motive” due to the lack of necessity for such action and would indicate he may have been spraying her to cause a halt to her recording of potentially abusive arresting activity. Officer Manden’s pepper-spraying is similar to Checkley’s defaming church goers, and his pepper-spraying was unnecessary to the situation, just as the churchgoers defaming plaintiff’s brother was unnecessary to the situation because his brother was not actually behaving nefariously. Therefore, both actions illustrate “ulterior motive” in their conduct.
IV. Officer Manden pepper-sprayed Aleena Nikel in a “public venue”
House illustrated that the location of outrageous conduct has an effect on the degree of offensiveness in whether it is in a “public venue” or in the workplace. House v. Hicks, 218 Or App 348, 360 (2008). Id. at 360. Officer Manden engaged in outrageous conduct when he pepper-sprayed her on the steps of the federal courthouse; an extremely “public” area extraordinarily populated at that time because of the protest.
V. Officer Manden’s “character and degree of conduct” were beyond the bounds of decency in pepper-spraying Aleena Nikel
Officer Manden exhibited outrageous “character and degree of conduct” toward Aleena when pepper-spraying her, a factor of outrageous conduct in an IIED. House v. Hicks, 218 Or App 348, 358 (2008). The officer sprayed (from 12 inches away) Aleena in the face while subduing a protester in reaction to her videotaping the protest. This was outrageous and extreme due his use of unnecessary force and proximity in response to Aleena’s actions. Regulation in Oregon for minimum proximity of pepper-spraying is 18 inches, and he sprayed 30% closer than that—a clear indication of atrocious “character and degree of conduct.” Id. at 359.
CONCLUSION
Officer Manden very likely engaged in “outrageous conduct” with Aleena Nikel when he pepper-sprayed her in the face from 12 inches away.