Richer v. Poisson

*163ARMSTRONG, J.,

concurring in part, dissenting in part.

I concur in the majority’s decision to affirm the summary judgment for defendant on plaintiff Lee Richer’s claim for malicious prosecution, but write separately on that claim to emphasize what I believe to be the correct analysis of it. I dissent from the decision to reverse the dismissal of plaintiffs’ claim for intentional infliction of emotional distress for failure to state a claim.

The elements of the tort of intentional infliction of emotional distress are well established in Oregon. To state such a claim, a plaintiff must allege facts on which a factfinder could find

“that the defendant intended to inflict and caused severe emotional distress, and that the defendant’s acts were ‘an extraordinary transgression of the bounds of socially tolerable conduct.’ ”

Whelan v. Albertson’s, Inc., 129 Or App 501, 504-05, 879 P2d 888 (1994) (citation omitted).

The determination whether a plaintiff has alleged facts sufficient to satisfy the first two elements of the tort presents little difficulty in most cases, and I agree with the majority that plaintiffs have done so in this case. It is the third element of the tort that can be difficult to apply, however, because there is little to guide courts in deciding whether the alleged conduct constitutes “conduct which a reasonable jury could find [to be] beyond the farthest reaches of socially tolerable behavior.” Hall v. The May Dept. Stores, 292 Or 131, 137, 637 P2d 126 (1981).

It is difficult to discern the boundary between tolerable and intolerable behavior, because the boundary is necessarily imprecise.1 Nevertheless, it is our obligation to determine that boundary in evaluating whether the conduct *164alleged in a given case went beyond it. See, e.g., Mauri v. Smith, 135 Or App 662, 901 P2d 247 (1995).

We often look to the facts of other cases involving this tort for guidance on the issue, see, e.g., Hall, 292 Or at 136, but it is not helpful to do that in this case because the conduct alleged by plaintiff is unlike anything previously discussed in the Oregon cases. The resolution of the issue depends, then, on our own judgment about the community’s view of defendant’s conduct.

The conduct the majority considers sufficient to support a finding that defendant engaged in conduct that was outrageous in the extreme consists of (1) making harassing telephone calls to plaintiffs, (2) painting graffiti on their store windows and (3) making obscene gestures to their customers and employees. 137 Or App at 160. As to the last point, plaintiffs alleged that defendant harassed plaintiffs’ employees, not their customers, by

“loitering by the door to [plaintiffs’] business, making obnoxious faces at customers and employees, and making obscene gestures.”

The alleged conduct may be crude, rude and boorish, but it is not outrageous in the extreme.

On the telephonic harassment, plaintiffs alleged that defendant “[c]onducted a course of telephone harassment to [plaintiffs’] home and business” from November 1990 until June 1991. Significantly, plaintiffs did not allege the number, content or nature of the calls, other than to label them “harassing.” Without more information, I do not believe that the allegation identifies conduct that could be considered to be outrageous in the extreme.

Finally, on the graffiti, plaintiffs allege that defendant “spray painted graffiti over [plaintiffs’] display windows” between mid-November 1990 and January 1991. Again, plaintiffs do not allege the content of the graffiti, nor how frequently defendant applied it.

Taken together, the conduct alleges a pattern of obnoxious and boorish behavior, at least some of which may be actionable under theories other than intentional infliction of emotional distress. I do not believe, however, that the *165alleged conduct properly can be found to be outrageous in the extreme, so I respectfully dissent from the decision holding that plaintiffs have alleged a claim for intentional infliction of emotional distress.

On the claim for malicious prosecution, the majority holds that the claim fails as a matter of law because the prosecutor who filed the charge against plaintiff Lee Richer testified without contradiction that the decision to charge Richer was solely his own. According to the majority, that testimony precludes a finding that defendant initiated the prosecution against Richer, which is one of the elements of the tort. See, e.g., Rogers v. Hill, 281 Or 491, 497-98, 576 P2d 328 (1978).

Richer argued below that the prosecutor’s testimony is not determinative on that issue, because the prosecutor’s decision necessarily was based on information provided to the prosecutor by defendant that defendant knew to be false. Richer’s statement of the relevant legal principles is correct. A per son can be liable for initiating a prosecution by providing knowingly false information to public officials that leads them to file a criminal charge, if the false information affects the decision by the responsible officials to file it. That is true even though the official who files the charge conducts his or her own investigation of it and makes an independent decision to file it.

The Supreme Court explained that principle in Humbert v. Knutson et al, 224 Or 133, 137-38, 354 P2d 826 (1960), as follows:

“A person may institute a criminal proceeding, as the word ‘institute’ is used in a case of malicious prosecution, by either signing the charge himself or inciting or procuring another to do so. This other may be a private individual or a public officer. However, if it is a public officer and a full, complete and accurate disclosure is made to the officer and no undue influence is used upon him, thus leaving the decision to prosecute entirely to the officer’s uncontrolled discretion, there is no liability on the part of the private informant if the charge proves to be false. * * * If pertinent information is withheld or there are misrepresentations made as to the facts, or undue influence brought to bear, there can be no intelligent exercise of the officer’s discretion, *166and the person thus procuring the action of the officer is not insulated from responsibility.”

(Citations omitted; emphasis supplied.)

Richer argues that there is evidence in the summary judgment record that would support a finding that defendant disposed of his own signs. If there were such evidence, Richer would be entitled to proceed to trial on his claim against defendant for malicious prosecution, notwithstanding the testimony by the prosecutor that his decision to charge Richer was solely his own. That is because the information withheld by defendant would have prevented the prosecutor from making an intelligent decision about whether to prosecute Richer for removing the signs.

The problem, however, is that Richer did not show that there was a triable issue of fact about whether defendant had withheld any pertinent information about the signs when he reported their loss. Richer testified in his affidavit in opposition to defendant’s motion for summary judgment that the

“disappearance of [defendant’s] signs was his own making, and [defendant] knew when he told the police that I took [them], that that was not true.”2

Those statements are not competent to establish anything about defendant’s handling of the signs, because they do not show that they are based on any personal knowledge by Richer about the disposition of the signs or defendant’s knowledge of it. See ORCP 47 D.3 Richer also submitted an *167affidavit from a member of his family who was involved in the removal of the signs, but that affidavit also does not create an issue of fact about whether defendant provided false information to the police about the loss.

Given the record on summary judgment, the trial court did not err in granting defendant’s motion for summary judgment on Richer’s claim for malicious prosecution. I therefore concur in the decision to affirm the trial court’s dismissal of that claim.

The imprecision of the boundary is reflected in the third element of the tort, which refers to conduct that goes “beyond the farthest reaches of socially tolerable behavior.” Hall, 292 Or at 137. That phrasing suggests that there is a band of behavior delimited by the views of the most sensitive and the least sensitive members of a community on what constitutes intolerable behavior. Hence, conduct that crosses the boundary is conduct that would be considered by every reasonable person in a community to be beyond the pale, because the standard requires conduct that is “beyond the farthest reaches of socially tolerable behavior.”

On defendant’s motion, the trial court struck a portion of the above-quoted testimony. I believe that the court was correct in doing so. Nevertheless, Richer argues on appeal that the trial court erred in striking the evidence, and that the stricken evidence should be considered to determine whether the court erred in granting summary judgment. Because I do not believe that the stricken evidence establishes the existence of a disputed issue of material fact, it is not necessary to determine whether the trial court erred in striking it.

Our decisions have split over whether this court can consider evidence that is in a summary judgment record, but that does not satisfy the requirements of ORCP 47 D for evidence submitted in opposition to a summary judgment motion, to determine whether a trial court erred in granting summary judgment. Compare, e.g., Knez Building Materials Co. v. Manikas, 113 Or App 220, 222 n 2, 831 P2d 80 (1992) with Paulsen v. Continental Porsche Audi, 49 Or App 793, 799 n 3, 620 P2d 1384 (1980) and McDonough v. Jones, 48 Or App 785, 791-92, 617 P2d 948, renden 290 or 519 (1980). In this case, I would hold that we should not consider such evidence. Hence, the evidence in Richer’s affidavit about defendant’s role in the disposition of *167the signs should not be considered to determine whether the trial court erred in granting summary judgment in favor of defendant, because the testimony was not shown to be based on personal knowledge.