Junghee Kim Spicer v. Paul Patnode

FILED
JUNE 25, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JUNGHEE KIM SPICER and ) No. 36065-2-III
DAVID SPICER, wife and husband; )
YAKIMA ARTS ACADEMY, a )
Washington limited liability company, )
)
Respondents, )
)
v. ) PUBLISHED OPINION
)
PAUL PATNODE, individually and on )
behalf of the marital community, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Over the course of four months, Paul Patnode
regularly and repeatedly remote-started his Ford F-250 pickup, revved its engine, and
activated its alarm to scare Junghee Spicer’s young piano students as they walked past his
truck on the way to their piano lessons. Mr. Patnode’s purpose was to interfere with Ms.
Spicer’s piano lesson business and to cause her severe distress. He failed in his first
objective, but accomplished the second. The trial court found in favor of Ms. Spicer on
her claim of outrage and awarded her $40,000.
No. 36065-2-III
Spicer v. Patnode
The primary question we answer is whether Mr. Patnode’s conduct was
sufficiently outrageous and extreme to sustain the trial court’s award. Conduct that is
done infrequently merely to annoy a person cannot form the basis of an outrage claim.
But the same conduct, done frequently over a period of weeks or months with the intent to
cause severe emotional distress to a person, can form the basis of an outrage claim. We
hold that Mr. Patnode’s conduct was sufficiently outrageous and extreme to present a
question of fact. For this reason, we defer to the finder of fact and affirm.
FACTS1
Background prior to purported tortious conduct
Paul and Melissa Patnode live across Lyle Loop Road from Junghee and David
Spicer. In 2009, Ms. Spicer began teaching private piano lessons in her home, mostly to
children. That year, Mr. Spicer suffered a stroke. Three years later, he had to retire early.
To supplement their income, Ms. Spicer increased the number of piano lessons she
taught.
In February 2012, Mr. Patnode complained to the Spicers about Ms. Spicer’s piano
teaching business. Unable to resolve the problems, Mr. Patnode complained to Yakima
Mr. Patnode challenges 16 of the trial court’s findings of fact. Of these, 12 are
1
quite nuanced and are unimportant to the issues on appeal. The remaining challenges,
those to findings of fact 23, 32, 33, and 34, are specifically addressed below.
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County. His complaints included increased traffic, damage to a sprinkler in his front
yard, noise from car doors shutting and remotely locking, and headlights coming into his
house.
The complaints prompted Yakima County to require the Spicers to obtain a
conditional use permit for their business. On July 11, 2012, the Spicers obtained a minor
home occupation permit from Yakima County. The permit authorized Ms. Spicer to teach
piano lessons for up to five students per day. Lessons were permitted from 2:00 p.m. to
6:00 p.m., Monday through Friday, September through May. The permit required the
Spicers to provide off-street parking for customers.
In August 2012, Yakima County issued a modified permit that authorized Ms.
Spicer to provide lessons for two additional months per year and increase the number of
students to six per day. The Spicers were still required to provide off-street parking for
customers.
Throughout 2012, Mr. Patnode continued complaining to Yakima County about
Ms. Spicer’s business. His complaints included Ms. Spicer teaching instruments other
than piano and teaching outside the authorized hours. In addition, he complained that
parents dropped their children off and picked them up along the street. He believed that
this violated the off-street parking requirement.
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In December 2012, Mr. Patnode sued the Spicers and alleged that their piano
business violated the restrictive covenants that applied to the neighborhood. In 2014, the
Spicers prevailed on summary judgment. Mr. Patnode was ordered to pay more than
$30,000 for the Spicers’ attorney fees and costs.
In 2014, the city of Selah annexed the parties’ neighborhood. Mr. Patnode began
complaining to the city of Selah that Ms. Spicer continued to violate her modified permit.
That year, the Spicers formed Yakima Arts Academy, LLC (YAA). Ms. Spicer, through
YAA, continued to teach piano lessons, both in her house and also in a leased building in
Yakima.
Purported tortious conduct
From around Thanksgiving 2015 to March 24, 2016, Mr. Patnode parked his Ford
F-250 diesel pickup along the sidewalk next to the Spicers’ residence where piano
students entered the Spicers’ home. Other vehicles belonging to Mr. Patnode or his
household also parked along the Spicers’ side of the street.
During this time, Mr. Patnode regularly and repeatedly remote-started his F-250
and set off its alarm when Ms. Spicer’s students and their parents walked by the F-250.
Ms. Spicer observed this conduct approximately 12 times. When Ms. Spicer observed
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this conduct, it frightened her and her students. Mr. Spicer observed this conduct about
six times.
Ms. Spicer’s 2016 anti-harassment petition
In 2016, Ms. Spicer petitioned for an anti-harassment order against Mr. Patnode.
Based on evidence presented at the anti-harassment hearing, the court granted Ms.
Spicer’s request and entered an anti-harassment order. The order prevented Mr. Patnode
from parking vehicles on Ms. Spicer’s side of the street and required him to disable the
remote-start and alarm for his F-250. Mr. Patnode complied with the order.
This lawsuit
Partial grant of summary judgment for the Spicers
In May 2016, the Spicers filed this lawsuit against Mr. Patnode. They sought
damages for intentional interference with their piano business and damages for intentional
infliction of emotional distress. Prior to trial, the Spicers moved for partial summary
judgment. The motion sought to preclude Mr. Patnode from disputing (1) his conduct had
no legitimate or lawful purpose and (2) his conduct caused Ms. Spicer substantial
emotional distress. The Spicers contended that these issues had already been litigated and
necessarily decided when they obtained the anti-harassment order in March 2016. The
trial court granted their motion.
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Trial
At trial, Ms. Spicer testified that Mr. Patnode’s conduct caused her severe
emotional distress because she feared for her safety and the safety of her children and
students. She explained that Mr. Patnode’s remote-starting his truck scared her because
she was concerned he would “go to the next step and actually physically harm
somebody.” Report of Proceedings at 131.
Ms. Spicer testified that Mr. Patnode caused her to suffer from anxiety and
insomnia, and that she began taking anti-anxiety medication in 2013. At some point after
Mr. Patnode began remote-starting his truck, Ms. Spicer began taking an additional anti-
anxiety medication.
Two parents and one piano student testified about arriving for and leaving from
piano lessons between Thanksgiving 2015 and March 24, 2016. They testified they
observed Mr. Patnode’s F-250 remotely starting, its engine revving, and its alarm
activating on multiple occasions. One parent testified that this made her scared and
concerned for her children’s safety. One student testified that every time he had a piano
lesson between those dates, he observed the F-250 remotely start, its engine rev loudly,
and its alarm activate. The parents did not take their children out of piano lessons with
Ms. Spicer, and the student who testified did not quit taking lessons from Ms. Spicer.
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The trial court found that Mr. Patnode did not cause any loss of business to the
Spicers. The court, however, did find that Mr. Patnode’s conduct was sufficiently
outrageous to constitute intentional infliction of emotional distress. The trial court further
found that Ms. Spicer, but not Mr. Spicer, had proved compensable damages.
The trial court entered the following findings of fact to which Mr. Patnode assigns
error:
23. In 2016, Ms. Spicer filed a petition for an anti-harassment
order against Mr. Patnode. The Court takes judicial notice that following a
hearing, the Yakima County Superior Court orally concluded that Mr.
Patnode was remotely starting his F-250 and setting off vehicle alarms and
doing so on purpose repeatedly for the purpose of harassing the Spicers,
making their lives more difficult. . . .[2]
....
32. Junghee Spicer suffered severe emotional distress as a result
of Mr. Patnode parking vehicles on the street alongside the Spicers [sic]
house from Thanksgiving 2015 to March 24, 2016, and regularly and
repeatedly remote starting his F-250 pickup (which included revving the
engine, lights turning on) and remotely setting off the vehicle alarm while it
was parked on the street alongside the Spicers’ house, where
children/students and their parents were walking to and from lessons at the
Spicers’ residence.
33. The conduct of Mr. Patnode described above was directed
towards Ms. Spicer. Mr. Patnode sought to interfere with the Spicers’
music business. Ms. Spicer was the direct recipient of Mr. Patnode’s
2
Mr. Patnode persuasively argues that the trial court erred by taking judicial
notice of the previous court’s oral ruling. See State v. Hescock, 98 Wash. App. 600, 606,
989 P.2d 1251 (1999). We give no weight to finding of fact 23. This does not impair the
same findings contained in finding of fact 32, subject to those findings being supported
by substantial evidence.
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conduct even though she was not present for, and did not observe, all
instances when Mr. Patnode remote-started his F-250 or remotely set off the
vehicle alarm when students and/or parents were walking to or from piano
lessons.
34. Ms. Spicer was fearful for her safety and for the safety of her
students. . . . Ms. Spicer suffered insomnia and anxiety as a result of Mr.
Patnode’s conduct. Ms. Spicer began taking anti-anxiety medication in
2013. At some time after the remote-start/alarm incidents described above,
Ms. Spicer began to take one additional anti-anxiety medication. At the
time of trial Ms. Spicer was also taking a third anti-anxiety medication.
Clerk’s Papers (CP) at 322-26.
In addition, the trial court entered the following conclusion of law, to which Mr.
Patnode also assigns error:
6. Mr. Patnode’s conduct . . . was outrageous conduct. Ms.
Spicer was the object of Mr. Patnode’s course of conduct. Mr. Patnode’s
conduct was directed at Ms. Spicer through her piano students and their
parents. Mr. Patnode’s object was to interfere with the teaching business
and cause distress to Ms. Spicer. Mr. Patnode’s conduct went beyond all
possible bounds of decency, and was atrocious and utterly intolerable in a
civilized society. Mr. Patnode’s conduct was intentional, he knew it would
cause or inflict Ms. Spicer with emotional distress, and his conduct in fact
caused Ms. Spicer severe emotional distress.
CP at 327-28 (emphasis added).
The trial court awarded Ms. Spicer $40,000 in damages.
Mr. Patnode timely appealed. A panel of this court granted oral argument, which
occurred at Whitman College, in Walla Walla, Washington.
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ANALYSIS
Mr. Patnode makes three arguments: (1) conduct that Ms. Spicer or her immediate
family members did not observe cannot form the basis of Ms. Spicer’s outrage claim,
(2) his conduct does not rise to the level of extreme and outrageous conduct as a matter of
law, and (3) substantial evidence does not support the trial court’s finding that Ms. Spicer
suffered severe emotional distress. We address the issues in the order argued by Mr.
Patnode.
1. EVIDENCE NOT DIRECTLY WITNESSED BY MS. SPICER
Mr. Patnode argues the trial court erred by considering evidence not directly
witnessed by Ms. Spicer or her immediate family members. His argument implies that his
conduct was directed at the young piano students.
When the outrageous conduct is directed at a third person, the plaintiff must be an
immediate family member of the person who is the object of the defendant’s action, and
he must be present at the time of the conduct. Grimsby v. Samson, 85 Wash. 2d 52, 60, 530
P.2d 291 (1975) (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. l (AM. LAW INST.
(1965)). This rule has no application here, where the outrageous conduct was directed at
Ms. Spicer rather than at a third person.
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Here, the trial court found:3
Ms. Spicer was the object of Mr. Patnode’s course of conduct. Mr.
Patnode’s conduct was directed at Ms. Spicer through her piano students
and their parents. Mr. Patnode’s object was to interfere with the teaching
business and cause distress to Ms. Spicer.
CP at 327.
The above finding is well supported by the evidence. For years, Mr. Patnode
sought to substantially prevent, Ms. Spicer from teaching piano lessons at her house. He
began by acting within the legal process. He first complained to Ms. Spicer, later he
complained to Yakima County, and still later he complained to the city of Selah. When
these complaints failed, he brought a lawsuit to prevent Ms. Spicer from teaching piano
lessons out of her house. He alleged that Ms. Spicer’s piano lesson business violated the
neighborhood’s restrictive covenants. The Spicers had that lawsuit dismissed and were
awarded their reasonable attorney fees.
Shortly after, Mr. Patnode began acting outside the legal process. Mr. Patnode
began scaring Ms. Spicer’s young piano students by remote-starting his F-250, revving its
engine, and activating its alarm. The young students, walking by his truck, did nothing to
3
This finding comes from the trial court’s conclusion of law 6. To the extent a
conclusion of law contains a finding of fact, an appellate court will treat it as a finding of
fact. Hegwine v. Longview Fibre Co., 162 Wash. 2d 340, 353, 172 P.3d 688 (2007).
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No. 36065-2-III
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warrant being scared. In fact, Mr. Patnode testified he did not remote-start his truck for
the purpose of scaring the piano students or their parents. The trial court reasonably
found that Mr. Patnode’s conduct was not directed at the young piano students, but
instead was directed through them to Ms. Spicer. Because Mr. Patnode’s conduct was
directed at Ms. Spicer, the trial court did not err by considering evidence not directly
witnessed by Ms. Spicer.
2. EXTREME AND OUTRAGEOUS CONDUCT
Mr. Patnode argues, as a matter of law, his conduct does not amount to extreme
and outrageous conduct.
To constitute outrage, the conduct at issue “must be ‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” Reyes v.
Yakima Health Dist., 191 Wash. 2d 79, 91, 419 P.3d 819 (2018) (internal quotation marks
omitted) (quoting Grimsby, 85 Wash. 2d at 59). “Consequently, the tort of outrage ‘does not
extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.’ In this area plaintiffs must necessarily be hardened to a certain degree of
rough language, unkindness and lack of consideration.” Kloepfel v. Bokor, 149 Wash. 2d
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192, 196, 66 P.3d 630 (2003) (internal quotation marks omitted) (quoting Grimsby, 85
Wash. 2d at 59).
In order to prevail on a claim of intentional infliction of emotional distress, the
plaintiff must show (1) extreme and outrageous conduct, (2) intentional or reckless
infliction of emotional distress, and (3) actual result to plaintiff of emotional distress.
Lyons v. U.S. Bank Nat’l Ass’n, 181 Wash. 2d 775, 792, 336 P.3d 1142 (2014). The claim is
also known as the tort of outrage. Id. “Although the three elements are fact questions
for the jury, th[e] first element of the test goes to the jury only after the court
‘determine[s] if reasonable minds could differ on whether the conduct was sufficiently
extreme to result in liability.’” Robel v. Roundup Corp., 148 Wash. 2d 35, 51, 59 P.3d 611
(2002) (quoting Dicomes v. State, 113 Wash. 2d 612, 630, 782 P.2d 1002 (1989)).
We examine Washington4 decisions to determine what type of conduct is
sufficiently outrageous and extreme to impose liability on an actor. Mr. Patnode cites
Strong v. Terrell, 147 Wash. App. 376, 195 P.3d 977 (2008) and Snyder v. Medical Service
Corporation of Eastern Washington, 98 Wash. App. 315, 988 P.2d 1023 (1999), aff’d, 145
4
Each party cites several cases from other jurisdictions in support of their
arguments. As shown below, even Washington cases are inconsistent on what type of
conduct is sufficiently egregious to constitute outrage. It is, therefore, unsurprising that
the out-of-state cases discussed by the parties and the dissent are inconsistent and
unhelpful.
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Wn.2d 233, 35 P.3d 1158 (2001) for the proposition that inflicting emotional harm on
another over a period of months is insufficient to meet the high standard of
outrageousness. In both cases, the plaintiff employees were subject to demeaning and
insulting verbal treatment by their supervisors over a period of months. Strong, 147 Wn.
App. at 381; Snyder, 98 Wash. App. at 319. Both courts noted that liability for outrage does
not extend to treatment akin to “‘mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.’” Snyder, 98 Wash. App. at 321-22 (internal quotation
marks omitted) (quoting Grimsby, 85 Wash. 2d at 59); accord Strong, 147 Wash. App. at 386.
The courts reviewed the supervisors’ treatment of their respective employees, determined
that the treatment did not rise above insults, threats, and trivialities, and concluded that no
liability existed. Strong, 147 Wash. App. at 386-87; Snyder, 98 Wash. App. at 322.
Mr. Patnode next cites Saldivar v. Momah, 145 Wash. App. 365, 186 P.3d 1117
(2008) to further support the proposition that inflicting emotional harm on another over a
period of months is insufficient to meet the high standard of outrage. In that case, a
woman and her husband fabricated allegations of sexual abuse against a physician and
filed a lawsuit against him alleging that he sexually abused her. Id. at 390. The trial court
dismissed the plaintiffs’ claims after they rested, finding that the sexual abuse claim was
not credible and that the purported victim had lied on the stand. Id. at 383-84. The trial
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court also found that the attorney for the plaintiffs filed “‘irrelevant and salacious
declarations . . . for the improper purpose of eliciting media/public attention, to harass and
damage the reputation of Dr. Momah, and to . . . gain advantage in other litigation.’” Id.
at 386. Due to plaintiffs’ false claims and their attorney’s actions, Dr. Momah lost his
job, suffered a stroke, and was uninsurable and unemployable. Id. at 384. The trial court
awarded Dr. Momah substantial damages on his outrage claim against the plaintiffs and
their attorney. Id. at 385. The appellate court reversed and concluded that the conduct
was insufficient to constitute outrage. Id. at 390.
We contrast Saldivar with Phillips v. Hardwick, 29 Wash. App. 382, 628 P.2d 506
(1981). There, the Phillips agreed to purchase the Hardwicks’ house and entered into an
earnest money agreement. Id. at 384. The Hardwicks later learned that their new house
would not be ready until shortly after the agreed closing date of November 25. Id. The
Phillips agreed to rent the house to the Hardwicks until December 1. Id. The Hardwicks
did not vacate as agreed. Id. On December 2, the Hardwicks told the Phillips that
because they were tenants, the Phillips were powerless to remove them. Id. The Phillips
drove by the house on December 3. Id. They looked inside, noticed the furniture was
gone, and arranged to move in the following day. Id. The next day, when they arrived
with a carload of furniture, the Hardwicks initially prevented them from moving in. Id.
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When the Phillips returned with a second carload, they noticed two deputy sheriffs. Id. at
384-85. The deputies determined that the Phillips had the right of possession and advised
the Hardwicks of this, yet the Hardwicks refused to leave. Id. at 385. The next day, the
Phillips commenced two lawsuits. Id. The first lawsuit was an unlawful detainer, and the
second lawsuit sought damages on various theories, including intentional infliction of
emotional distress. Id. The Hardwicks moved out a few days later and gave the keys to
the Phillips. Id. In the second lawsuit, the trial court found in favor of the Phillips and
awarded them over $11,000. Id. at 383. On appeal, the trial court affirmed the damages
award on the basis that reasonable minds could differ as to whether the Hardwicks’
conduct was sufficiently outrageous. Id. at 388-89.
We cannot reconcile Saldivar with Phillips. Saldivar involved extreme conduct
that caused extensive emotional and financial damages. Yet, the appellate court reversed
the trial court’s finding of outrage. Phillips involved a few days’ delay in occupancy that
caused a mere annoyance to a home purchaser. Yet, the appellate court affirmed the trial
court’s finding of outrage. We disagree with both decisions.
We find support for our disagreement in Wolf v. Scott Wetzel Servs., Inc., 113
Wash. 2d 665, 782 P.2d 203 (1989), which appears to take a middle approach. There, Mr.
Wolf lifted a heavy timber at work and injured his lower back. Id. at 667. He filed a
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workers’ compensation claim. Id. His employer was self-insured, and Mr. Wolf’s claim
was administered by Scott Wetzel Services, Inc. (SWS). Id. Mr. Wolf received time loss
and medical payments. About six months after the injury, SWS learned from Mr. Wolf’s
attending physician that Mr. Wolf could return to work. Id. As a consequence, SWS
closed Mr. Wolf’s claim. Id. A few months later, Mr. Wolf and his new physician
requested the claim to be reopened on the basis that the lower back injury “‘may have
contributed to psychological problems.’” Id. SWS denied the request. Id. Mr. Wolf
appealed the denial and the denial eventually was reversed. Id. Mr. Wolf brought suit
against SWS alleging bad faith denial of his claim and outrage. Id.
In denying Mr. Wolf’s outrage claim, our high court explained:
As illustrative of what constitutes [outrage], . . . [i]n [an appellate case from
California], it was alleged that an investigator hired by the insurance carrier
befriended the claimant, misrepresenting his true capacity and intentions.
Then, during an excursion to Disneyland, the investigator enticed the
claimant into crossing a rope bridge and engaging in other physically
demanding activities. Unbeknownst to the claimant, another investigator
filmed her while she did so. Upon discovering at a subsequent hearing how
she had been deceived, the claimant suffered a physical and mental
breakdown requiring hospitalization. We agree that such conduct is indeed
outrageous under the standard adopted by this court.
The same cannot be said for the conduct involved in the present
case. . . . The facts . . . in the present case in no way suggest that the claims
administrator for the self-insured employer engaged in conduct that could
constitute the tort of outrage. Furthermore, . . . Mr. Wolf is alleging only
“bad faith” in the administration of his workers’ compensation claim.
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Id. at 678-795 (footnote omitted).
As the cases reflect, what constitutes outrage is nebulous and difficult to define.
But three things are clear. First, to impose liability, the law requires the conduct to be so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency as to be utterly intolerable in a civilized community. Reyes, 191 Wash. 2d at 91.
Second, liability may not be imposed for mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. Strong, 147 Wash. App. at 386; Snyder, 98 Wn.
App. at 321-22. And third, somewhere between these standards, the question of liability
passes from a court of law to the trier of fact. Robel, 148 Wash. 2d at 51.
Had Mr. Patnode remote-started his truck occasionally to scare passing piano
students, this would not be actionable. Rather, it would constitute a mere annoyance—a
triviality. But this is not what Mr. Patnode did. Instead, he engaged in a course of
conduct over a period of four months intending to cause Ms. Spicer sufficient emotional
distress so she would stop teaching piano lessons at her house. He intended to achieve
through harassment what he had been unable to achieve through legal means. In order to
5
The Wolf court’s analysis comports with the various illustrations contained in the
Restatement (Second) of Torts § 46. Whereas the conclusions reached in the intermediate
appellate decisions in Strong and Snyder do not comport with the illustrations.
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No. 36065-2-III
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achieve his purpose, he knew he had to cause Ms. Spicer severe emotional distress. And
he did.
The dissent classifies this conduct as merely childish. We disagree. The
conduct—because it occurred frequently over a period of months—clearly exceeds
insults, indignities, threats, annoyances, petty oppressions, or other trivialities. We
believe a trier of fact could consider the conduct to be so outrageous in character, and so
extreme in degree, as to be utterly intolerable in a civilized community. For this reason,
the question of liability passes from us to the trier of fact.
3. SEVERE EMOTIONAL DISTRESS
Mr. Patnode argues substantial evidence does not support the trial court’s finding
that Ms. Spicer suffered severe emotional distress. We disagree.
We will not overturn a trial court’s finding of fact if it is supported by substantial
evidence. Gorman v. Pierce County, 176 Wash. App. 63, 87, 307 P.3d 795 (2013).
Substantial evidence is that amount of evidence sufficient to persuade a fair-minded
person that a given premise is the truth. Phillips, 29 Wash. App. at 387.
To prevail on an outrage claim, a plaintiff must show that he or she actually
suffered severe emotional distress as a result of the defendant’s conduct. Kloepfel, 149
Wash. 2d at 201-03. Mr. Patnode first argues that regularly and repeatedly remote-starting
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his F-250 over the course of four months, revving its engine, and activating its alarm
could not have caused a reasonable person to suffer severe emotional distress. We
disagree. It was Mr. Patnode’s objective to cause Ms. Spicer to suffer sufficient
emotional distress so she would stop teaching piano lessons at her house. This objective
could not be accomplished by mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. Mr. Patnode’s argument that Ms. Spicer could not have
suffered severe emotional distress runs counter to his objective. If he did not think his
conduct would accomplish his objective, he would not have engaged in it.
Mr. Patnode next argues no one could believe his conduct could reasonably cause
Ms. Spicer to fear for her safety. We disagree. One of the parents testified that Mr.
Patnode’s conduct made her scared and concerned for her children’s safety.
Mr. Patnode, citing Sutton v. Tacoma School District No. 10, 180 Wash. App. 859,
324 P.3d 763 (2014), argues that Ms. Spicer’s symptoms of stress and insomnia were
insufficient to constitute extreme emotional distress. There, a teacher pinned a first grade
special education student against the wall and cornered her by chest-bumping her while
yelling insults at her. Id. at 863. The child’s grandmother witnessed the incident. Id.
She testified that the child was scared, angry, sad, and mad, and did not want to return to
the teacher’s class. Id. at 872. We held that this evidence was sufficient to constitute
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emotional distress. Id. However, there was no evidence of how long the emotional
distress lasted. Id. Because actionable outrage requires emotional distress that is more
than transient, we affirmed the trial court's summary judgment. Id. at 874.
Sutton is distinguishable. Here, Ms. Spicer suffered emotional distress throughout
Mr. Patnode's four-month course of conduct.
Affirmed.
l" . . .-<.,.. c.-..- ~W\.\1 • c.. ~.
Lawrence-Berrey, C.J.
I CONCUR:
Fearing, J.
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No. 36065-2-III
KORSMO,J. -
Outrageous conduct is conduct "which the recitation of the facts to an
average member of the community would arouse his resentment against the
actor and lead him to exclaim 'Outrageous!' "
Reid v. Pierce County, 136 Wash. 2d 195, 201-02, 961 P .2d 333 (1998) (quoting Browning
v. Slenderella Sys., 54 Wash. 2d 440, 448, 341 P .2d 859 ( 1959) (quoting RESTATEMENT
(SECOND) OF TORTS § 46(g) (AM LAW INST. 1965)). As the court more recently stated:
The conduct must be "' so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.'"
Reyes v. Yakima Health Dist., 191 Wash. 2d 79, 91,419 P.3d 819 (2018) (quoting Grimsby
V. Samson, 85 Wash. 2d 52, 59, 530 P.2d 291 (1975) (quoting RESTATEMENT§ 46 cmt. d).
The main element of an outrage claim is, of course, outrageous behavior. Remote
starting a car or setting off a car _alarm when someone is walking past simply is not
atrocious conduct, nor is it "utterly intolerable in a civilized community." Mr. Patnode's
behavior was juvenile, childish, oafish, puerile, immature, infantile, and lame. It would
not have even qualified as a bad junior high school prank in a less sophisticated time. He
was annoying, but he was not outrageous.
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Washington requires more than this simplistic behavior to satisfy the threshold
requirements for the tort of intentional infliction of emotional distress. The definition of
the tort is found in RESTATEMENT § 46 1:
( 1) One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability
for such emotional distress, and if bodily harm to the other results from it,
for such bodily harm.
(2) Where such conduct is directed at a third person, the person is
subject to liability if he intentionally or recklessly causes severe emotional
distress
(a) to a member of such person's immediate family who is present at the
time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results
in bodily harm.
Ms. Spicer' s action proceeded under § 46(2)(b ), meaning that she had to show that
outrageous conduct directed at third persons in her presence resulted in bodily harm.
While the remaining elements were established, the outrageous conduct element was not.
She failed to meet the required threshold showing. Jackson v. People 's Federal Credit
Union, 25 Wash. App. 81, 84, 604 P .2d 1025 ( 1979).
In Jackson, the plaintiff sued in outrage because the credit union had attempted to
repossess his car at his place of work after a dispute arose over loan repayment; the
incident aggravated his diabetes, a condition known to the credit union. Id. at 83-84.
1 No Washington court has applied the Restatement (Third) of Torts § 46, so, like
the majority, I will confine my remarks to the Restatement (Second). It should be noted
that comment i in the Second Restatement is now found as comment h in the Third
Restatement.
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Division Two of this court rejected the outrage claim, determining that the behavior of
the credit union failed to meet the "extreme and outrageous" standard of the tort. Id. at
84 (quoting RESTATEMENT§ 46 cmt. h).
Proof of outrageous behavior is the sine qua non of this tort. There is no exception
for the intentional infliction of distress by nonoutrageous behavior. While the steady
dripping of small amounts of water may erode a foundation just as effectively as a
deluge, this tort is only concerned with the latter possibility. Behavior must be beyond
the pale to be actionable.
Our case law long has reached that same conclusion. Infliction of emotional
distress by intentional behavior is by itself inadequate to establish this tort. We have
found far more offensive behavior than noisy car alarms and remote vehicle starting
insufficient to establish outrageous behavior. E.g., Repin v. State, 198 Wash. App. 243, 392
P.3d 1174 (2017) (holding that veterinarian's unsuccessful attempt at euthanasia, failure
to warn of risks, and the dog's immense suffering not sufficiently outrageous); Christian
v. Tohmeh, 191 Wash. App. 709, 737-38, 366 P.3d 16 (2015) (doctors' course of conduct-
obfuscation of plaintiffs diagnosis, yelling and shouting at her and telling her problems
were in her head; telling other doctors that her emotional issues made her history less
valid-insufficient to meet the "extremely high" standard of outrage); Strong v. Terrell,
147 Wash. App. 376, 388-89, 195 P.3d 977 (2008) (finding conduct insufficient where
coworker told blonde jokes, ridiculed plaintiffs personal life, called her a bum, and made
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other disparaging remarks over the course of several years). Saldivar v. Momah, 145 Wn.
App. 365, 186 P.3d 1117 (2008) (holding that filing suit against physician with malicious
intent is not"' utterly intolerable in a civilized community'").
While no prior Washington case has been based on car noises, a couple of Ohio
cases have rejected the notion that such behavior is outrageous. Krlich v. Clemente,
2017-0hio-7945, 98 N.E.3d 752, 757, 759 (Ct. App.) (finding car horn honking "at all
hours of the day and night," alleged lewd gestures, and more (such as paintballing
plaintiffs home and driving on their lawn) not sufficiently extreme and outrageous for
intentional infliction of emotional distress); Allen v. Pirozzoli, No. 103632, 2016-0hio-
2645, 2016 WL 1600344 (Ct. App. Apr. 21, 2016) (unpublished) (conduct of setting off
fireworks, standing in his driveway when plaintiff would pull in the driveway, horn
honking, banging on fence and windows, revving motorcycle in front of plaintiffs house
insufficient to establish outrageousness). 2
Mr. Patnode is clearly a bad neighbor, but he also is bad at being an outrageous
one. Although the trial court's desire to punish him for his conduct is understandable,
and appreciated by this writer, that conduct simply does not make the grade for the tort of
outrage. He intentionally inflicted emotional distress, but did so in a bland enough
manner that this particular claim was not actionable. This was harassment pure and
2Unpublished Ohio opinions may be cited as authority in that state. See OHIO
SUP. CT. REP. OP. R. 3.4. Thus, they may be relied on in this state. GR 14.l(b).
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simple. Since the majority rewrites the tort of intentional infliction of emotional distress
by treating the outrageous conduct element as a question of fact for the trier-of-fact, I
respectfully dissent.
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