Bollaert v. Witter
1990 Ore. App. LEXIS 541, 792 P.2d 465, 101 Or. App. 654 (1990)
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Rule of Law:
Assault requires an intentional attempt to do violence coupled with a present ability to carry out that intention; mere words, no matter how violent, do not constitute an assault. Intentional infliction of emotional distress requires acts that are an 'extraordinary transgression of the bounds of socially tolerable conduct,' which is a high bar not met by insults or rudeness arising from day-to-day friction, even if intended to cause distress.
Facts:
- Kelly Itzen decided to replace a fence separating his and Stephen Witter's adjoining properties.
- While Itzen was working on the fence, he and Ana Witter had three separate confrontations where they exchanged words.
- At some point before the fence was completed, Itzen pulled up some survey stakes that had been set on behalf of the Witters.
- The next day, Itzen visited Stephen Witter at Witter’s office and informed him that he had pulled up the stakes.
- During this visit, Stephen Witter stated, 'I’m a Vietnam Vet,' and then, 'Let’s duke it out.'
- When Itzen declined to fight, Witter became more upset and said, 'Well, Kelly, I wouldn’t be surprised if my wife — if, while you’re working on the fence, my wife took a gun and shot you.'
Procedural Posture:
- A boundary dispute began between the Witters and Itzens.
- Itzens filed a counterclaim against Witters in the trial court (court of first instance) for assault and intentional infliction of emotional distress.
- Deborah Itzen's claims against the Witters were withdrawn.
- Kelly Itzen's claims against Ana Witter were dismissed following a motion for a directed verdict.
- After Kelly Itzen presented evidence on his counterclaim against Stephen Witter, Witter moved for a directed verdict on the assault and intentional infliction of emotional distress claims.
- The trial court denied Stephen Witter's motion for a directed verdict.
- The jury returned a judgment for damages in favor of Kelly Itzen.
- Stephen Witter (appellant) appealed the judgment for damages to the Oregon Court of Appeals.
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Issue:
1. Does a verbal statement, 'Let's duke it out,' followed by, 'I wouldn't be surprised if my wife * took a gun and shot you,' without any accompanying overt act, constitute assault? 2. Do these same verbal statements, made during a heated boundary dispute between neighbors after one party admitted to pulling up survey stakes, constitute an 'extraordinary transgression of the bounds of socially tolerable conduct' sufficient for a claim of intentional infliction of emotional distress?
Opinions:
Majority - Edmonds, J.
No, the verbal statements made by Stephen Witter do not constitute assault or intentional infliction of emotional distress. Regarding the assault claim, the court reasoned that assault, as defined in Cook v. Kinzua Pine Mills Co. et al, requires an intentional attempt to do violence to the person of another coupled with a present ability to carry that intention into effect. The court found that Witter's statements, without any accompanying overt act, did not meet this definition, emphasizing that mere words, regardless of their violence, do not amount to an assault. There was no evidence that Witter attempted to harm Itzen. Regarding the claim for intentional infliction of emotional distress, the court applied the three-part test from Lewis v. Oregon Beauty Supply Co., which requires the defendant's acts to consist of 'some extraordinary transgression of the bounds of socially tolerable conduct.' The court viewed Witter’s actions within the context of a continuing neighbor boundary dispute, noting that Itzen had just admitted to pulling up Witter's survey stakes. Citing Hall v. The May Dept. Stores, the court reiterated that the tort does not provide recovery for temporary annoyance, injured feelings from friction, rudeness, or harsh words, even if intended to cause distress. The court concluded that Witter's statements, under these specific circumstances, did not 'extraordinarily transgress the bounds of socially tolerable conduct' and were not the type of behavior the tort was designed to protect against. Therefore, the trial court erred in denying Witter's motion for a directed verdict on both claims.
Analysis:
This case establishes a high bar for claims of assault and intentional infliction of emotional distress (IIED) when based primarily on verbal conduct, particularly in the context of disputes. For assault, it reinforces that words alone are insufficient, requiring an overt act and present ability to harm. For IIED, it clarifies that even offensive or threatening words, especially within an ongoing conflict, may not rise to the level of an 'extraordinary transgression' needed to sustain the claim, thus preventing the tort from becoming a remedy for every instance of social friction or rudeness. This limits potential liability for verbal altercations in everyday life, emphasizing that the torts are reserved for more egregious conduct.
