Closed Memorandum Analysis

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Closed Memorandum

Summary The standard for outrageous conduct according to Section 46 comment d in the Restatement is “one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous’”. Comments e and f in Section 46 further elaborate on conditions considered for outrageous conduct:
“e.The extreme and outrageous character of conduct may arise from an abuse by the actor of a position, or a relation with the other which gives him actual or apparent authority over the other, or power to affect his interests”.
“f.The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental peculiarity. The conduct may be heartless, flagrant and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if they did not know”. The addition of comments e and f allow for the possibility that conduct that normally would not qualify as outrageous by the strict threshold set out in d, would be considered outrageous if other conditions are met. Here the two issues are whether (1) Schlecklich’s conduct is outrageous under comment d and …show more content…

In the Dominguez Supreme Court case, the “ unjustified assertion of power by one party” was used as grounds to meet the standard of outrageous conduct. There an agent for Equitable Life attempted to have a severely disabled man surrender his insurance policy by providing fraudulent medical documents stating he was no longer disabled. The court cited comment e in making the determination that the company’s control over his livelihood coupled with the action of stopping insurance payments was an abuse of power that made the conduct

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