Drejza v. Vaccaro

TERRY, Associate Judge,

dissenting:

I strongly disagree with my colleagues’ disposition of this case. I think the trial judge was absolutely right when she wrote in her opinion that “the law does not afford a cause of action for bad taste, boorishness, condescension, obnoxiousness, or social ineptitude.” Since the record, even when viewed in the light most favorable to Ms. Drejza, establishes no more than that, I cannot join in the majority’s decision to reverse the judgment.

*1318I do not disagree with the majority’s general summary of the law governing claims for intentional infliction of emotional distress. I part company with my colleagues only over the application of the law to the facts of this ease, which in my view do not establish the commission of a tort. Detective Vaccaro’s treatment of Ms. Drejza was deplorable, but I do not see how it can be regarded as so “extreme” and “outrageous” as to be “beyond all possible bounds of decency,” or “atrocious and utterly intolerable in a civilized community.” Restatement (Seoond) of Torts § 46 comment d (1965). That is the standard which Ms. Drejza must meet,1 and I do not think she has met it. This court in Jackson v. District of Columbia, 412 A.2d 948, 956-957 (D.C.1980), relying on the Restatement, affirmed a summary judgment for the District of Columbia on facts showing police misconduct at least as reprehensible as that shown here, perhaps more so. The trial judge, correctly in my view, relied on Jackson in rejecting Ms. Drejza’s claim. As the judge wrote in her opinion:

[I]f no tort was committed by the officers in Jackson, then no tort was committed by [Detective] Vaccaro. The bulk of the words uttered by Vaccaro were well within the range of predictable issues that a detective might raise, in order to ascertain whether a rape complainant is serious about wanting to go forward, whether she realizes the litigation traumas that await her, and whether she is aware of the tactical weaknesses in the prosecution’s ease that may not redound to her benefit.

Although Detective Vaccaro could certainly have been more gracious and considerate in choosing his words and in his overall dealings with Ms. Drejza, he would have failed in his duty as a police officer if he had not forcefully brought home to her the pitfalls in pursuing her rape complaint. Police officers, after all, are not social workers, nor should they be expected to think or behave like social workers. The very nature of their work causes them to be skeptical and suspicious when they receive a report of unlawful activity. They should not be obliged, on pain of potential civil liability, to put their skepticism aside while performing their professional duties. I fear that my colleagues are well on the way to creating a new tort of not being nice to a victim of crime.

The majority also seems to be saying that because this case involves a rape victim, Detective Vaccaro should have recognized that she was “peculiarly susceptible to emotional distress,” Restatement, supra, § 46 comment f, and therefore should have tempered his remarks accordingly. But I know of no case which says that a rape victim has a legal right to be treated more gently than a victim of any other violent crime, such as kidnapping or armed robbery. Any violent crime is a source of great trauma to its victim, and a person who has just been robbed at gunpoint is likely to be in no better psychological shape than someone who has just been raped. Although I do not deny that rape is unique in many ways and that it is likely to leave permanent psychological scars on its victim, rape is not legally unique so as to justify a rule giving rape victims special rights when being interviewed by investigating police officers, rights that other crime victims do not have.

As a matter of common decency, Detective Vaccaro clearly should have treated Ms. Drejza with more respect and kindness. He should not have said much of what he said to her, should not have been smiling (or smirking) as he said it, should not have thrown her panties at her, should not have been, as Ms. Drejza said, “just a real jerk about it.” But common decency is a moral, not a legal duty. Detective Vaccaro may be a lout and a boor, or worse, but in my view he is no tortfeasor.

Respectfully but vehemently, I dissent.

. This court has consistently followed the Restatement in assessing claims for intentional infliction of emotional distress. See, e.g., District of Columbia v. Thompson, 570 A.2d 277, 289-290 (D.C.1990), vacated on other grounds, 593 A.2d 621 (D.C.), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991); Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912, 103 S.Ct. 221, 74 L.Ed.2d 176 (1982); Waldon v. Covington, 415 A.2d 1070, 1076-1077 (D.C.1980).