In several recent opinions, the Montana Supreme Court indicated its willingness to recognize intentional infliction of mental distress as an independent tort, even as the court stated that no plaintiff had presented a factual situation which would satisfy the elements of the cause of action. In the 1995 case of Sacco v. High Country Independent Press, Inc., the Montana Supreme Court held that an "independent cause of action for intentional infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's intentional act or omission. "
The Montana Supreme Court's Sacco opinion improved, principally by clarifying, the law of IIMD in Montana in several important respects. For example, the court correctly recognized the existence of an independent cause of action and properly clarified the meaning of the severe emotional distress element of the claim by relying substantially on the definition included in comment j, Section 46 of the Restatement (Second) of Torts. Notwithstanding the Montana Supreme Court's comprehensive treatment of the intentional infliction of mental distress tort and its careful attempt to clarify the applicable law, some confusion remains.
With all due respect for the valuable efforts of the court, I believe that there is a preferable approach to this complicated area of substantive tort law. The solution that I proffer is the recognition of an independent cause of action for IIMD which relies on the elements of the tort that comprise the cause of action in the majority of American jurisdictions: the plaintiff would be required to show that the defendant engaged in unpermitted, intentional, extremely outrageous conduct which caused the plaintiff severe emotional distress.
The two critical constituents of the cause of action should be articulated in terms of the concepts prescribed in the Restatement (Second) of Torts, which courts in the overwhelming majority of states have elaborated and made more specific when applying the cause of action to particular cases. For instance, a useful starting point for enunciating extremely outrageous conduct is the Restatement and many courts' articulation of conduct which exceeds all bounds that could be tolerated by a reasonable society. A valuable point of departure for defining severe mental distress would correspondingly be the ideas included in comment j, Section 46 of the Restatement (Second), some aspects of which the Sacco court reproduced verbatim and apparently adopted.
The alternative proposed would simultaneously be clearer, easier for appellate and trial judges to apply, and more precise, while it would resemble more closely the legal standards that govern the tort in many other states. The option would also be more responsive to certain public policy problems, namely protecting defendants against unlimited liability and those parties and courts against a possible flood of fraudulent or fictitious claims, which have made some judges reluctant to recognize the IIMD tort. Indeed, the Montana Supreme Court expressed concern about these very policy difficulties, even as the requirements relating to the cause of action that the court enunciated could ironically encourage the complications.
Because the Montana Supreme Court has substantially clarified the law pertaining to the independent cause of action for IIMD in the Sacco opinion, but some problems remain, the Sacco decision warrants analysis. This essay undertakes that effort. I first briefly examine relevant historical information. The paper then evaluates Sacco. Finding that the Montana Supreme Court has greatly improved the law governing IIMD, I afford suggestions which should additionally clarify this complex cause of action.
Carl Tobias, Intentional Infliction of Mental Distress in Montana,57 Mont. L. Rev. 493 (1996)