The intentional infliction of emotional distress ("IIED"), also known as the tort of outrage, is a relatively new cause of action, first appearing in the legal academic literature during the 1930s. Since that time, IIED has gained widespread acceptance and is now recognized in all U.S. jurisdictions, with most courts invoking the definition set forth in the Restatement (Second) of Torts. Despite this general acceptance of the tort, courts routinely assert that IIED is a disfavored cause of action. Courts appear wary of holding defendants liable for plaintiffs' emotional injuries and therefore seek to discourage such claims.
In their efforts to cabin the application of IIED while preserving it as a valid cause of action, the Restatement authors and the courts have created a confused tort that means entirely different things to different judges and thus serves disparate functions in the courts of various states. In a minority of jurisdictions, courts express disfavor by limiting IIED claims to instances of outrageous and blatantly wrongful conduct for which the plaintiff has no other viable theory of redress. For example, if a defendant's conduct can support a defamation claim, these courts will not allow the plaintiff to maintain an IIED claim for the same conduct. In effect, these courts define IIED such that it never overlaps with any other tort. Recent formulations of this position characterize IIED as a "gap-filler," or a "residual" tort.
Reformulating Outrage: A Critical Analysis of the Problematic Tort of IIED,
61 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol61/iss3/5