Plaintiffs Motion for Restraining Order Hennepin County

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					Introduction to Tort Law                                                        Professor Chiesa

                                    Readings for June 13

                           WESTERN UNION TELEGRAPH CO.

  The action in this case is based upon an alleged assault on the person of plaintiff's
**710 wife by one Sapp, an agent of defendant in charge of its office in Huntsville, Ala.
The assault complained of consisted of an attempt on the part of Sapp to put his hand on
the person of plaintiff's wife coupled with a request that she come behind the counter in
defendant's office, and that, if she would come and allow Sapp to love and pet her, he
“would fix her clock.”

  The first question that addresses itself to us is, Was there such an assault as will justify
an action for damages?

  Blackstone's definition of an assault is: “An attempt or offer to beat another, without
touching him; as if one lifts up his cane or his fist in a threatening manner; or strikes at
him but misses him.” As observed by Gaynor, J., in Prince v. Ridge, 32 Misc. 666, 66 N.
Y. S. 454, this is not a complete definition, but is sufficient to serve as an illustration of
the nature of an assault which will support an action.

  In this state an assault and battery is: “Any touching by one person of the person of
another in rudeness or in anger.” Seigel v. Long, 169 Ala. 79, 53 So. 753, 754, 33 L. R.
A. (N. S.) 1070; Jacobi v. State, 133 Ala. 17, 32 So. 158.

   *542 [1] While every battery includes an assault, an assault does not necessarily
require a battery to complete it. What it does take to constitute an assault is an unlawful
attempt to commit a battery, incomplete by reason of some intervening cause; or, to state
it differently, to constitute an actionable assault there must be an intentional, unlawful,
offer to touch the person of another in a rude or angry manner under such circumstances
as to create in the mind of the party alleging the assault a well-founded fear of an
imminent battery, coupled with the apparent present ability to effectuate the attempt, if
not prevented. 5 Corpus Juris, 615 (1); Prince v. Ridge, 32 Misc. 666, 66 N. Y. S. 454.

  Solicitation by a man to a woman for intercourse unaccompanied by an assault is not
actionable. Davis v. Richardson, 76 Ark. 348, 89 S. W. 318; Reed v. Maley, 115 Ky. 816,
74 S. W. 1079, 62 L. R. A. 900, 2 Ann. Cas. 453. Insulting words used when not
accompanied by an assault are not the subject of an action for damages. Republic Iron &
Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516.

  [2] What are the facts here? Sapp was the agent of defendant and the manager of its
telegraph office in Huntsville. Defendant was under contract with plaintiff to keep in
repair and regulated an electric clock in plaintiff's place of business. When the clock
needed attention, that fact was to be reported to Sapp, and he in turn would report to a

Introduction to Tort Law                                                     Professor Chiesa

special man, whose duty it was to do the fixing. At 8:13 o'clock p. m. plaintiff's wife
reported to Sapp over the phone that the clock needed attention, and, no one coming to
attend to the clock, plaintiff's wife went to the office of defendant about 8:30 p. m. There
she found Sapp in charge and behind a desk or counter, separating the public from the
part of the room in which defendant's operator worked. The counter is four feet and two
inches high, and so wide that, Sapp standing on the floor, leaning against the counter and
stretching his arm and hand to the full length, the end of his fingers reaches just to the
outer edge of the counter. The photographs in evidence show that the counter was as high
as Sapp's armpits. Sapp had had two or three drinks and was “still slightly feeling the
effects of whisky; I felt all right; I felt good and amiable.” When plaintiff's wife came
into the office, Sapp came from towards the rear of the room and asked what he could do
for her. She replied: “I asked him if he understood over the phone that my clock was out
of order and when he was going to fix it. He stood there and looked at me a few minutes
and said: „If you will come back here and let me love and pet you, I will fix your clock.‟
This he repeated and reached for me with his hand, he extended his hand toward me, he
did not put it on me; I jumped back. I was in his reach as I stood there. He reached for me
right along here (indicating her left shoulder and arm).” The foregoing is the evidence
offered by plaintiff tending to prove an assault. Per contra, aside from the positive denial
by Sapp of any effort to touch Mrs. Hill, the physical surroundings as evidenced by the
photographs of the locus tend to rebut any evidence going to prove that Sapp could have
touched plaintiff's wife across that counter even if he had reached his hand in her
direction unless she was leaning against the counter or Sapp should have stood upon
something so as to elevate him and allow him to reach beyond the counter. However,
there is testimony tending to prove that, notwithstanding the width of the counter and the
height of Sapp, Sapp could have reached from six to eighteen inches beyond the desk in
an effort to place his hand on Mrs. Hill. The evidence as a whole presents a question for
the jury. This was the view taken by the trial judge, and in the several rulings bearing on
this question there is no error.

  [3] [4] [5] The next question is, Was the act of Sapp towards Mrs. Hill,
plaintiff's wife, such as to render this defendant liable under the doctrine of respondeat
superior? It is admitted that at the time of the alleged assault Sapp was the manager of
defendant's office in Huntsville; that he was in and about his master's business incident to
that office; that a part of the business of defendant was the regulation and keeping in
repair an electric clock in the store of plaintiff; that it was a part of Sapp's duties to
receive notice of **711 any necessary repairs and to report them to the proper servant or
agent for attention; that it was not a part of Sapp's duty to repair the clock, though he
sometimes had set the hands at the proper time; that Mrs. Hill had telephoned Sapp
reporting the clock for attention; that, no one responding to fix the clock, she went to
defendant's office and there found Sapp, who, being under the influence of liquor, made a
proposal to plaintiff's wife that, if she would come behind the counter and let him pet and
love her, he would fix her clock, coupled with evidence justifying the finding that the
foregoing facts were accompanied by a technical assault.

  The defendant is a public service corporation, maintaining open offices for the
transaction of its business with the public. In these offices are placed managers, who,

Introduction to Tort Law                                                      Professor Chiesa

within the line and scope of their authority, are the alter ego of the corporation. People
entering these offices are entitled to courteous treatment, and if, while transacting the
business of the corporation with the agent, an assault is made growing out of, or being
related to, the business there in hand, the corporation would be liable. Gassenheimer v.
Western Ry., 175 Ala. 319, 57 So. 718, 40 L. R. A. (N. S.) 998. But the assault in this
case, if *543 committed, was clearly from a motive or purpose solely and alone to satisfy
the sensuous desires of Sapp, and not in furtherance of the business of defendant. In such
case the liability rests with the agent and not the master. Such is the effect of the holding
in Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516;
Wells v. Henderson, etc., Co., 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115. To our
minds, the evidence is conclusive to the effect that, while Sapp was the agent of
defendant, in the proposal and technical assault made by him on plaintiff's wife he
stepped aside wholly from his master's business to pursue a matter entirely personal.
Where this is so, the doctrine of respondeat superior does not apply. Cooley on Torts, 533
et seq.; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) 653. The
rules of law governing cases of this nature are perfectly clear and well defined. The
confusion arises now and then from a failure to keep in mind the distinction between the
act done by the servant within the scope of, and the act done during, his employment. The
act charged in this case is clearly personal to Sapp and not referable to his employer.
Hardeman v. Williams, supra.

  The rulings of the trial court with reference to this question were erroneous. The
defendant was entitled to the general charge, and for the error in refusing this charge as
requested the judgment is reversed and the cause is remanded.

  Reversed and remanded.

Introduction to Tort Law                                                      Professor Chiesa


                                     BECKER, Judge.
Jordan Brower, who alleges that Christopher and Theodore Ackerley made anonymous
threatening telephone calls to him, appeals from a summary judgment dismissal of
**1143 his claims against them. Because the threatened harm was insufficiently
imminent to be actionable as civil assault, we hold the assault claim was appropriately
dismissed. But we reverse and remand for trial on the tort of outrage, rejecting the
argument that Brower's alleged emotional distress was not severe.


In deciding whether Brower has properly been denied the right to take his case to trial,
we do not evaluate the credibility of the witnesses, nor do we decide whether Brower's
allegations are true. Instead the question is whether the applicable law would permit a
reasonable jury to find in his favor. Because we decide only legal issues and not factual
ones, we make our determination de novo, according no particular deference to the
decision of the trial court. FN1 We describe the evidence in the record, and the
reasonable inferences therefrom, in a light most favorable to plaintiff Brower as the non-
moving party in the summary judgment proceeding.FN2

The plaintiff, Jordan Brower, is a Seattle resident active in civic affairs. Christopher and
Theodore Ackerley, in their early twenties at the time of the alleged telephone *90 calls,
are two sons of the founder of Ackerley Communications, Inc., a company engaged in
various activities in Seattle including billboard advertising. Brower perceived billboard
advertising as a visual blight. Based on his own investigation, he concluded that Ackerley
Communications had erected numerous billboards without obtaining permits from the
City of Seattle; had not given the City an accurate accounting of its billboards; and was
maintaining a number of billboards that were not on the tax rolls. In January, 1991,
Brower presented his findings to the City. When the City did not respond, Brower filed
suit in October of 1991 against the City and Ackerley Communications seeking
enforcement of the City's billboard regulations.

Within two days an anonymous male caller began what Brower describes as “a campaign
of harassing telephone calls” to Brower's home that continued over a period of 20
months. The first time, the caller shouted at Brower in an aggressive, mean-spirited voice
to “get a life” and other words to that effect. Brower received at least one more harassing
telephone call by January of 1992.

When the City agreed to pursue Brower's complaints about the billboard violations,
Brower dropped his suit. In April of 1992, the City made a public announcement to the
effect that Ackerley Communications had erected dozens of illegal billboards. Within a
day of that announcement, Brower received an angry telephone call from a caller he
identified as the same caller as the first call. In a loud, menacing voice, the caller told

Introduction to Tort Law                                                     Professor Chiesa

Brower that he should find a better way to spend his time. Two days later there was
another call telling Brower to “give it up”.

In July of 1992, shortly after the City Council passed a moratorium on billboard activity,
Brower received another angry anonymous call. The male voice swore at him and said,
“You think you're pretty smart, don't you?” Brower says he seriously wondered whether
he was in any danger of physical harm from the caller. Over the following months
Brower continued to receive calls from an *91 unidentified male who he says “belittled
me, told me what a rotten person I was, and who used offensive profanity.”

On July 19, 1993, the City Council passed a new billboard ordinance. At about 6:30 that
evening an angry-voiced man telephoned Brower and said “dick” in a loud voice and
hung up. At about 7:30 p.m. the same caller called and said, “I'm going to find out where
you live and I'm going to kick your ass.” At 9:43 p.m. Brower received another call from
a voice disguised to sound, in Brower's words, “eerie and sinister”. The caller said
“Ooooo, Jordan, oooo, you're finished; cut you in your sleep, you sack of shit.” Brower
recorded the last two calls on his telephone answering machine.

Brower made a complaint to the police, reporting that he was very frightened by these
calls. Because Brower had activated a **1144 call trapping feature of his telephone
service after the third telephone call, the police were able to learn that the call had
originated in the residence of Christopher Ackerley. When contacted by the police,
Christopher Ackerley denied making the calls. He said Brower's telephone number was in
his apartment, and that his brother Ted Ackerley had been in the apartment at the time
and perhaps had made the calls.

The City filed no criminal charges based on the police report. Brower then brought this
civil suit against Christopher and Theodore Ackerley seeking compensation for the
emotional distress he suffered as the result of the telephone calls. According to Brower,
he interpreted the calls of July 19 as a death threat, and felt “hunted down”. He
experienced feelings of panic, terror, and insecurity as well as a rising pulse, light-
headedness, sweaty palms, sleeplessness, and an inability to concentrate that lasted for
some time afterward: “Every day I come home, I worry that someone has burned our
house down, or if my wife is late from work, whether she has been harmed.”

The Ackerleys moved for summary judgment. Brower responded primarily with his own
declaration describing the telephone calls and his reaction to them. The trial *92 court
dismissed all claims. Brower appeals, arguing that his declaration raises a genuine issue
of material fact as to his claims of assault, negligence, and the tort of outrage. The
Ackerleys respond that the telephone calls described by Brower do not amount to civil
assault, and that the distress Brower claims he suffered as a result was insufficiently
severe to support his other causes of action.

[1] Damages for mental and emotional distress are generally available merely upon
proof of an intentional tort such as assault.FN3 In such cases, there is no requirement that
emotional distress be severe or manifested by physical symptoms in order to be

Introduction to Tort Law                                                       Professor Chiesa

compensable as an element of damages. FN4 Therefore, we initially examine Brower's
proof to determine whether he has presented proof of an intentional tort.


[2] [3] The elements of civil assault have not been frequently addressed in
Washington cases. The gist of the cause of action is “the victim's apprehension of
imminent physical violence caused by the perpetrator's action or threat.” FN5 In the 1910
case of Howell v. Winters FN6, the Supreme Court relied on a definition provided in
Cooley, Torts (3d ed.):

An assault is an attempt, with unlawful force, to inflict bodily injuries upon another,
accompanied with the apparent present ability to give effect to the attempt if not
prevented. Such would be the raising of the hand in anger, with an apparent purpose to
strike, and sufficiently near to enable the purpose to be carried into effect; the pointing of
a loaded pistol at one who is in its range; the pointing of a pistol not loaded at one who is
not aware of that fact and making an *93 apparent attempt to shoot; shaking a whip or the
fist in a man's face in anger; riding or running after him in threatening and hostile manner
with a club or other weapon; and the like. The right that is invaded here indicates the
nature of the wrong. Every person has a right to complete and perfect immunity from
hostile assaults that threaten danger to his person; „A right to live in society without being
put in fear of personal harm.‟ FN7

The discussion in Howell accords with the Restatement (Second) of Torts, which defines
assault, in relevant part, as follows:

(1) An actor is subject to liability to another for assault if

**1145 (a) he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.FN8

[4] According to section 31 of the Restatement, words alone are not enough to make an
actor liable for assault “unless together with other acts or circumstances they put the other
in reasonable apprehension of an imminent harmful or offensive contact with his person.”
FN9 The comments to section 31 indicate infliction of emotional distress is a better-
suited cause of action when mere words cause injury, “even though the mental discomfort
caused by a threat of serious future harm on the part of one who has the apparent
intention and ability to carry out his threat may be far more emotionally disturbing than
many of the attempts to inflict minor bodily contacts which are actionable as assaults.”

The Ackerleys argue that dismissal of Brower's assault *94 claim was appropriate
because the threatening words were unaccompanied by any physical acts or movements.
Brower acknowledges that words alone cannot constitute an assault, but he contends the

Introduction to Tort Law                                                      Professor Chiesa

spoken threats became assaultive in view of the surrounding circumstances including the
fact that the calls were made to his home, at night, creating the impression that the caller
was stalking him.

[5] Whether the repeated use of a telephone to make anonymous threats constitutes
acts or circumstances sufficient to render the threats assaultive is an issue we need not
resolve because we find another issue dispositive: the physical harm threatened in the
telephone calls to Brower was not imminent.

[6] To constitute civil assault, the threat must be of imminent harm. As one
commentator observes, it is “the immediate physical threat which is important, rather
than the manner in which it is conveyed.” FN11 The Restatement's comment is to similar
effect: “The apprehension created must be one of imminent contact, as distinguished
from any contact in the future.” FN12 The Restatement gives the following illustration:
“A threatens to shoot B and leaves the room with the express purpose of getting his
revolver. A is not liable to B.” FN13

The telephone calls received by Brower on July 19 contained two explicit threats: “I'm
going to find out where you live and I'm going to kick your ass”; and later, “you're
finished; cut you in your sleep”. The words threatened action in the near future, but not
the imminent future. The immediacy of the threats was not greater than in the
Restatement's illustration where A must leave the room to get his revolver. Because the
threats, however frightening, were not accompanied by circumstances indicating that the
caller was in a position to reach Brower and *95 inflict physical violence “almost at
once,” FN14 we affirm the dismissal of the assault claim.


In Cagle v. Burns and Roe, Inc.,FN15 the Supreme Court allowed the plaintiff to pursue
emotional distress damages because the suit alleged a wrongful termination of
employment in violation of public policy which, the court recognized, “can be accurately
characterized as an intentional tort.” FN16 According to Cagle, “recovery of emotional
distress**1146 damages has been allowed in conjunction with many intentional or willful
acts which violated a clear mandate of public policy.” FN17 Relying on Cagle, Brower
argues that even if the telephone calls do not amount to a civil assault, he has presented
facts sufficient to show the defendants willfully violated the clear mandate of public
policy manifested in a statute making telephone harassment at least a gross

In Brower's short presentation of this issue in his appellate*96 brief we discern the
outline of an argument that telephone harassment, as defined by the criminal statute,
should be recognized in civil law as an intentional tort. If telephone harassment is an
intentional tort, then under Cagle damages are awardable for emotional distress without
any threshold requirement of severity or physical symptoms.

Introduction to Tort Law                                                         Professor Chiesa

[7] The problem is that Brower did not make this argument below. His trial court brief
on summary judgment discussed the criminal statute only in connection with his theory
of negligent infliction of emotional distress, a theory Brower acknowledged as requiring
some manifestation of “objective symptomatology”.FN19 An issue not briefed or argued
in the trial court will not be considered on appeal.FN20 Whether criminal telephone
harassment gives rise to an independent civil cause of action is an issue that must be left
to another case.


As explained in a comment to section 46 of the Restatement of Torts, the law's
recognition of infliction of emotional distress as an independent basis of tort liability is
relatively recent:

[E]motional distress may be an element of damages in many cases where other interests
have been invaded, and tort liability has arisen apart from the emotional distress. Because
of the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of
setting up any satisfactory boundaries to liability, the law has been slow to afford
independent protection to the interest in freedom from emotional distress standing alone.
It is only within recent years that the rule *97 stated in this Section has been fully
recognized as a separate and distinct basis of tort liability, without the presence of the
elements necessary to any other tort, such as assault, battery, false imprisonment, trespass
to land, or the like. FN21

A great deal of human conduct not otherwise tortious will cause emotional distress to
other persons, sometimes by accident and sometimes by intention. When a plaintiff
attempts to recover emotional distress damages in the absence of an independent basis of
tort liability, there are special requirements with respect to damages. Requirements that
the damage suffered be somehow **1147 extraordinary operates as a check against a
flood of civil suits arising from nothing more than petty feuds and hurt feelings.FN22

[8] [9] One liability-limiting rule applied in this state, as a result of the Supreme
Court's decision in Hunsley v. Giard, is that a plaintiff claiming negligent infliction of
emotional distress must show the distress to be manifested by “objective
symptomatology”- i.e., “physical symptoms evidencing and resulting from the emotional
distress.” FN23 Following Hunsley, this court has consistently rejected *98 claims for
negligent infliction of emotional distress in the absence of physical symptoms. In
Shoemaker v. St. Joseph Hospital and Health Care Center,FN24 the plaintiff's evidence
showed that the plaintiff “suffered from sleep disturbances and nightmares, tearful
outbursts, low energy level, and recurrent „intrusive memories' ”, but she was never under
a doctor's care, and never received or requested medication; her social and occupational
functioning remained unimpaired, and her psychologist did not consider her clinically
depressed.FN25 On those facts, this court held the plaintiff failed as a matter of law to
establish the objective symptomatology required by Hunsley.FN26

Introduction to Tort Law                                                     Professor Chiesa

Because Brower's distress in reaction to the telephone calls was substantially similar to
the plaintiff's symptoms in Shoemaker, we affirm the dismissal of Brower's claim for
negligent infliction of emotional distress.


[10] The tort of intentional or reckless infliction of emotional distress, more commonly
known as the tort of outrage, is another vehicle for the recovery of emotional distress
damages in the absence of other tort remedies.FN27 The Supreme Court has defined the
elements of outrage as “(1) extreme and outrageous conduct; (2) intentional or reckless
infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional
distress.” FN28

For purposes of summary judgment, the Ackerleys do not dispute the characterization of
the telephone calls as outrageous conduct, and they accept that any distress *99
experienced by Brower was intentionally or recklessly inflicted. Their challenge is
limited to the third element-whether the resulting emotional distress was “severe.” FN29

**1148 [11] Brower describes reacting with acute anxiety to the final telephone calls.
After the second of three calls received on the same evening, he set his security system,
checked the door and window locks, and gathered his wife and cats in an upstairs
bedroom. He was nervous and was looking out the windows every few minutes. He and
his wife thought someone might already be there. Then the third call came threatening to
“finish” him and cut him in his sleep. After that he remained vigilant in looking out the
windows and was unable to fall asleep until after 2 a.m. His pulse went up, he got sweaty
palms, and felt light-headed. He worried that if he left his home somebody would burn it
down or break in. He says he was “very agitated and upset for days.” He was afraid to
appear in public. Even after seeking a restraining order, he felt angry and humiliated and
still feared that someone was going to harm him or his family. His sleeping patterns
changed as his “mind was in such constant turmoil of fear and uncertainty that [he] was
far too anxious to get to sleep at a reasonable hour.” Also, he would wake up in the night
worrying about the threats. He says he became less effective as an activist and worried
that his work would encourage more threats. His ability to concentrate deteriorated and
he was more fatigued.

[12] The Ackerleys initially contend Brower's distress, as described, cannot be viewed
as severe because it fails to identify “objective symptomatology.” That requirement,
however, belongs to the tort of negligent infliction of emotional distress. No Washington
case has incorporated *100 it into the tort of outrage.FN30 Similarly the Restatement has
recognized that bodily harm is not necessary.FN31

Ackerleys next contend that Brower's alleged distress is too insignificant to satisfy the
severity requirement. “Complete emotional tranquillity,” as the Restatement observes, “is
seldom attainable in this world, and some degree of transient and trivial emotional
distress is a part of the price of living among people.” FN32 Brower's outrage claim was
properly dismissed, according to the Ackerleys, because what he experienced was less

Introduction to Tort Law                                                        Professor Chiesa

severe than the distress described by the plaintiffs whose claims for outrage this court
held properly dismissed in Spurrell v. Bloch FN33 and Lawson v. Boeing FN34.

The parent-plaintiffs in Spurrell asserted outrage after authorities removed their children
from the home without the parents' knowledge. This court first rejected the plaintiffs'
characterization of the defendants' conduct as outrageous, and then also stated that
plaintiffs' claim of “one sleepless night, tears, loss of appetite, and anxiety” *101 failed to
establish severe emotional distress.FN35 In Lawson the plaintiff, a Boeing employee,
was demoted to a non-supervisory position after a company investigation into complaints
about **1149 his behavior.FN36 In connection with an outrage claim against Boeing and
its employees, the plaintiff asserted he suffered depression, sleeplessness, increased
headaches, loss of libido and energy and loss of appetite.FN37 This court held he had
satisfied neither the first element (outrageous conduct) nor the third element (severe
emotional distress).FN38 The court added that the symptoms alleged by Lawson “are not
„signs of distress above that level which is a fact of life‟ and do not constitute severe
emotional distress.” FN39

[13] [14] The conclusory analysis of the severity of the plaintiffs' distress in both
Lawson and Spurrell did not create an inflexible rule precluding all claims for outrage
where the distress alleged is not more severe than the distress described in those cases,
especially since in both cases the dismissals were driven primarily by the plaintiffs'
failure to establish outrageous conduct.FN40 When the conduct offered to establish the
tort's first element is not extreme, a court must withhold the case from a jury
notwithstanding proof of intense emotional suffering. The situation is different when the
alleged conduct sufficiently satisfies the first two elements, outrageous and extreme
conduct, and intentional or reckless infliction of emotional harm. In such cases, we hold a
case of outrage should ordinarily go to a jury so long as the court determines the
plaintiff's alleged damages are more than “mere annoyance, inconvenience,*102 or
normal embarrassment” that is an ordinary fact of life.FN41

FN40. Severity of distress is one of five factors encompassed within a court's initial
determination that “the conduct has been sufficiently extreme and outrageous to result in
liability.” Spurrell, 40 Wash.App. at 862, 701 P.2d 529 (citing Jackson v. Peoples Fed.
Credit Union, 25 Wash.App. 81, 604 P.2d 1025 (1979)).
FN41. Spurrell, 40 Wash.App. at 862, 701 P.2d 529 (citing Jackson, 25 Wash.App. 81,
604 P.2d 1025.)
[15] Our holding is consistent not only with Spurrell and Lawson, but also with the
Restatement. According to comment j in the Restatement, severe distress “must be
proved; but in many cases the extreme and outrageous character of the defendant's
conduct is in itself important evidence that the distress has existed.” FN42 In our view,
this is such a case. Unlike the conduct considered in Spurrell and Lawson, the telephone
harassment as alleged by Brower fits within the definition of a criminal statute, with no
imaginable purpose except to cause emotional distress. For purposes of summary
judgment, the Ackerleys do not dispute that a rational jury could conclude the entire
episode was extreme and outrageous.FN43 If a jury does eventually reach that
conclusion, the extremity of the conduct is in itself important evidence of the severity of

Introduction to Tort Law                                                    Professor Chiesa

distress experienced by the target. Taking into consideration the threatening nature of the
final calls, a jury could find from Brower's description of his acute and enduring anxiety
that he experienced more emotional distress than a person should ordinarily be expected
to put up with as “a part of the price of living among people.” FN44 We conclude Brower
is entitled to take his outrage claim to a jury.

Introduction to Tort Law                                                       Professor Chiesa


COHEN, Justice.
Plaintiffs instituted an action in trespass in the Court of Common Pleas No. 5 of
Philadelphia County against defendants on the following complaint:

„2. On or about November 20, 1955, and at other divers times, the Defendants threatened
the Plaintiffs by threats of violence that unless the Plaintiffs left the premises at 440 East
Girard Avenue, Philadelphia, forthwith, that said Defendants would assault the Plaintiffs
with great force and violence and would hit, beat and strike the Plaintiffs.

„3. As a result of said assault, the Plaintiffs were put in fear that a battery might be
committed against them, and the Plaintiffs did suffer great emotional distress and are so
suffering now and may continue so to suffer for a long time in the future. As a result
thereof, the Plaintiffs have had to expend sums of money for medicine and medical
attention and may continue to have to do so for a long time in the future.'

Defendant Ulrich filed preliminary objections which the court below properly sustained
on the ground that the complaint failed to state a cause of action in assault.

[1] [2] Generally speaking, an assault may be described as an act intended to put
another person in reasonable apprehension of an immediate battery, and which succeeds
in causing an apprehension of such battery. See 1 Harper & James, Law of Torts § 3.4
(1956). Words in themselves, no matter how threatening, do not constitute an assault; the
actor must be in a position to carry out the threat immediately, and he must take some
affirmative action to do so. *28 Bechtel v. Combs, 1918, 70 Pa.Super. 503; 1
Restatement, Torts § 31; Harper & James, supra, § 3.5. As the lower court correctly
pointed out, the allegation in the original complaint amounted to nothing more than
threats of violence and was, therefore, legally insufficient to **218 support a cause of
action in assault. The court, in its opinion, went on to say: „* * * to convert a threat into
an assault * * * require[s] some act eo instanti to indicate that the battery or other
undesirable result will ensue immediately. Plaintiffs have not pleaded any such battery;
indeed, we do not apprehend at this time whether or not plaintiffs are capable of doing so;
however, we will grant leave to amend so that plaintiffs may avail themselves of the
opportunity of filing a legally sufficient complaint.'

Subsequently, the plaintiffs filed the following amended complaint:

„2.) On or about November 20, 1955, at 440 East Girard Avenue, Philadelphia,
Pennsylvania, the defendants threatened the plaintiffs with threats of violence that the
defendants would commit immediate bodily harm upon the plaintiffs, and would strike
the plaintiffs with blackjacks and would otherwise hit them with great force and violence.

Introduction to Tort Law                                                        Professor Chiesa

„3.) At the time as aforesaid, the plaintiffs were put in great fear by the offer of the
defendants to commit bodily harm upon them.

„4.) As a result of the offers by the defendants to commit immediate bodily harm upon
the plaintiffs, the plaintiffs were placed in fear that a battery would be committed against

„5.) As a result of the aforesaid, the plaintiffs did suffer great emotional distress and do
now so suffer and may continue to suffer in the same manner in the future.

„6.) As a result of the aforesaid, the plaintiffs have had to expend sums of money for
medicine and medical *29 attention and they may continue to have such expenditures for
a long period of time in the future.'

The lower court again sustained preliminary objections brought by the defendant Ulrich,
indicating that again no cause of action had been pleaded, but this time the court denied
the plaintiffs the right to amend and plead further. From this order the plaintiffs appeal.

[3] [4] As the lower court points out, the only distinction between the two
complaints is that in the amended complaint plaintiffs aver that defendants „would
commit immediate bodily harm.‟ The amended complaint does not set forth any new
facts which would indicate that defendants committed any overt act other than oral
threats. Threatening words alone are deemed insufficient in this jurisdiction to put a
person in reasonable apprehension of physical injury or offensive touching. Bechtel v.
Combs, supra. See also 1 Restatement, Torts § 31; Harper & James, supra. We agree that
no cause of action in assault was pleaded in the amended complaint.

[5] [6] Plaintiffs would also have us look upon the complaint as stating a cause of
action for the intentional infliction of emotional distress. It is the well-settled rule in
Pennsylvania that there can be no recovery of damages for unintentional injuries resulting
from fright or nervous shock or mental or emotional disturbances or distress, unless they
are accompanied by physical injury or physical impact. Bosley v. Andrews, 1958, 393 Pa.
161, 142 A.2d 263; Koplin v. Louis K. Liggett Co., 1936, 322 Pa. 333, 185 A. 744;
Ewing v. Pittsburgh C. & St. L. Ry. Co., 1892, 147 Pa. 40, 23 A. 340, 14 L.R.A. 666.
While the rule may be different where the infliction is intentional, see Restatement, Torts
§ 46 (1948 Supp.), plaintiffs here plead emotional distress as the consequential result of
an alleged offer to inflict bodily harm, which pleadings are legally insufficient*30 to
create liability. See Restatement, Torts § 47 (1948 Supp.).

[7] [8] Plaintiffs further contend that they should not have been denied leave to
again amend their complaint. Our rules of civil procedure place no limitation upon **219
the number of amendments which may be allowed in any action. Moreover, under Rule
1033, Pa.R.C.P., 12 P.S.Appendix, which allows amendments to the pleadings at any
time by leave of court, the lower courts generally, and properly so, have exercised a
liberal policy in allowing amendment where no party is prejudiced thereby and fairness
militates that it be done. See 2 Anderson Pa.Civil Practice, p. 535, n. 5. Where, as here,

Introduction to Tort Law                                                        Professor Chiesa

the plaintiffs fail to set forth any suspicion of the existence of facts sufficient to support a
cause of action, our scope of review is merely over the exercise of discretion by the lower
court in disallowing further pleadings, which we will not reverse in the absence of plain
error. McNernie v. W. S. Peace, Inc., 1942, 344 Pa. 24, 24 A.2d 12; Trabue v. Walsh,
1935, 318 Pa. 391, 117 A. 815.

[9] Other than laying great stress upon the policy of liberality in permitting
amendments, as set forth in the Pennsylvania Rules of Civil Procedure, the plaintiffs give
no reason for disturbing the lower court's decision. In its opinion dismissing the original
complaint, the lower court made it clear that plaintiffs would have to allege some
affirmative act by defendants in an amended complaint in order to proceed to trial.
Plaintiffs cannot, and do not, plead surprise or lack of time to prepare an allegation of this
nature. We can only assume, as did the lower court, that plaintiffs are unable to set forth
such an allegation.

On this basis alone we would affirm the lower court. We have an additional reason,
however, in that the record sets forth plaintiffs' proposed second amended complaint in
trespass. The latter differs from the *31 amended complaint before us only in the addition
of the following paragraph:

„2. On or about November 20, 1955, at 440 East Girard Avenue, Philadelphia,
Pennsylvania, the defendants herein did bring into view and show to the plaintiffs that
they the defendants were carrying blckjacks.'

[10] This additional pargraph in no way cures the defects in the original complaint.
There is still no allegation indicating that the blackjacks were produced with such a show
of force as to place plaintiffs in immediate fear of harmful bodily contact. Nor is there
any indication of a connection in time between the showing of the blackjacks and the
asserted threats of violence. The two incidents might very well have occurred at different
times on the same day. It simply has not been alleged that defendants have indulged in
any act that amounts to an offer to commit a battery. That the defendants had in their
possession blackjacks does not convert unactionable words into an actionable trespass
unless the blackjacks were displayed and produced in such a manner as to amount to an
offer to commit a battery.

Order affirmed.

Introduction to Tort Law                                                        Professor Chiesa


SHERAN, Chief Justice.
This action by plaintiff Susan Jungclaus Peterson for false imprisonment and intentional
infliction of emotional distress arises from an effort by her parents, in conjunction with
other individuals named as defendants, to prompt her disaffiliation from an organization
known as The Way Ministry.

At trial, the Hennepin County District Court directed a verdict in favor of defendant Paul
Sorlien, plaintiff's former minister, finding the evidence proffered against *126 him
insufficient as a matter of law. The jury returned a verdict exonerating Mr. and Mrs.
Jungclaus and the other remaining defendants of the charge of false imprisonment;
however, the jury found defendants Veronica Morgel and Kathy Mills liable for
intentional infliction of emotional distress, assessing against each of them $1
compensatory damages and $4,000 and $6,000 respectively as punitive damages.

Plaintiff asserts that the trial court erred by 1) failing to grant a judgment notwithstanding
the verdict on the claim of false imprisonment; 2) permitting the admission of evidence
concerning her involvement in The Way and its activities; 3) instructing the jury that in
assessing plaintiff's credibility it could consider whether others than plaintiff were
participating in the expense of the litigation; 4) directing a verdict in favor of Paul
Sorlien; and 5) denying her motion to amend the complaint to substitute the proper names
of defendants previously identified as John Doe, James Roe, Jane Doe and Mary Roe and
to add a new cause of action.

We find that if the trial court erred in its jury instruction which outlined the factors that
could be considered in assessing plaintiff's credibility and by failing to permit the
substitution of proper names for defendants otherwise identified in the complaint, these
errors were not of a fundamental magnitude. In all other respects, we affirm the
determination of the district court.

Viewing the evidence in the light most favorable to the prevailing defendants, this case
marks the emergence of a new cultural phenomenon: youth-oriented religious or psuedo-
religious groups which utilize the techniques of what has been termed “coercive
persuasion” or “mind control” to cultivate an uncritical and devoted following.
Commentators have used the term “coercive persuasion,” originally coined to identify the
experience of American prisoners of war during the Korean conflict to describe the cult-
induction process. The word “cult” is not used pejoratively but in its dictionary sense to
describe an unorthodox system of belief characterized by “(g)reat or excessive devotion
or dedication to some person, idea, or thing.” Webster's New International Dictionary of
the English Language Unabridged 552 (1976). Coercive persuasion is fostered through
the creation of a controlled environment that heightens the susceptibility of a subject to
suggestion and manipulation through sensory deprivation, physiological depletion,
cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The

Introduction to Tort Law                                                    Professor Chiesa

aftermath of indoctrination is a severe impairment of autonomy and the ability to think
independently, which induces a subject's unyielding compliance and the rupture of past
connections, affiliations and associations. See generally Delgado, Religious Totalism:
Gentle and Ungentle Persuasion under the First Amendment, 51 S.Cal.L.Rev. 1 (1977).
One psychologist characterized the process of cult indoctrination as “psychological
kidnapping.” Id. at 23.

At the time of the events in question, Susan Jungclaus Peterson was 21 years old. For
most of her life, she lived with her family on a farm near Bird Island, Minnesota. In 1973,
she graduated with honors from high school, ranking second in her class. She
matriculated that fall at Moorhead State College. A dean's list student during her first
year, her academic performance declined and her interests narrowed after she joined the
local chapter of a group organized internationally and identified locally as The Way of
Minnesota, Inc.

The operation of The Way is predicated on the fund-raising activities of its members. The
Way's fund-raising strategy centers upon the sale of pre-recorded learning programs.
Members are instructed to elicit the interest of a group of ten or twelve people and then
play for them, at a charge of $85 per participant, a taped introductory course produced by
The Way International. Advanced tape courses are then offered to the participants at
additional cost, and training sessions are conducted to more fully acquaint recruits with
the orientation of the group and the obligations of membership. Recruits must contribute
a minimum of 10 percent of their earnings to the organization;*127 to meet the tithe,
student members are expected to obtain part-time employment. Members are also
required to purchase books and other materials published by the ministry, and are
encouraged to make larger financial contributions and to engage in more sustained efforts
at solicitation.

By the end of her freshman year, Susan was devoting many hours to The Way, listening
to instructional tapes, soliciting new members and assisting in training sessions. As her
sophomore year began, Susan committed herself significantly, selling the car her father
had given her and working part-time as a waitress to finance her contributions to The
Way. Susan spent the following summer in South Dakota, living in conditions described
as appalling and overcrowded, while recruiting, raising money and conducting training
sessions for The Way.

As her junior year in college drew to a close, the Jungclauses grew increasingly alarmed
by the personality changes they witnessed in their daughter; overly tired, unusually pale,
distraught and irritable, she exhibited an increasing alienation from family, diminished
interest in education and decline in academic performance. The Jungclauses, versed in the
literature of youth cults and based on conversations with former members of The Way,
concluded that through a calculated process of manipulation and exploitation Susan had
been reduced to a condition of psychological bondage.

On May 24, 1976, defendant Norman Jungclaus, father of plaintiff, arrived at Moorhead
to pick up Susan following the end of the third college quarter. Instead of returning to

Introduction to Tort Law                                                    Professor Chiesa

their family home, defendant drove with Susan to Minneapolis to the home of Veronica
Morgel. Entering the home of Mrs. Morgel, Susan was greeted by Kathy Mills and
several young people who wished to discuss Susan's involvement in the ministry. Each of
those present had been in some way touched by the cult phenomenon. Kathy Mills, the
leader of the group, had treated a number of former cult members, including Veronica
Morgel's son. It was Kathy Mills a self-styled professional deprogrammer, to whom the
Jungclauses turned, and intermittently for the next sixteen days, it was in the home of
Veronica Morgel that Susan stayed.

The avowed purpose of deprogramming is to break the hold of the cult over the
individual through reason and confrontation. Initially, Susan was unwilling to discuss her
involvement; she lay curled in a fetal position, in the downstairs bedroom where she first
stayed, plugging her ears and crying while her father pleaded with her to listen to what
was being said. This behavior persisted for two days during which she intermittently
engaged in conversation, at one point screaming hysterically and flailing at her father.
But by Wednesday Susan's demeanor had changed completely; she was friendly and
vivacious and that night slept in an upstairs bedroom. Susan spent all day Thursday
reading and conversing with her father and on Saturday night went roller-skating. On
Sunday she played softball at a nearby park, afterwards enjoying a picnic lunch. The next
week Susan spent in Columbus, Ohio, flying there with a former cult member who had
shared with her the experiences of the previous week. While in Columbus, she spoke
every day by telephone to her fiance who, playing tapes and songs from the ministry's
headquarters in Minneapolis, begged that she return to the fold. Susan expressed the
desire to extricate her fiance from the dominion of the cult.

Susan returned to Minneapolis on June 9. Unable to arrange a controlled meeting so that
Susan could see her fiance outside the presence of other members of the ministry, her
parents asked that she sign an agreement releasing them from liability for their past
weeks' actions. Refusing to do so, Susan stepped outside the Morgel residence with the
puppy she had purchased in Ohio, motioned to a passing police car and shortly thereafter
was reunited with her fiance in the Minneapolis headquarters of The Way. Following her
return to the ministry, she was directed to counsel and initiated the present action.

*128 1. Plaintiff seeks a judgment notwithstanding the verdict on the issue of false
imprisonment, alleging that defendants unlawfully interfered with her personal liberty by
words or acts which induced a reasonable apprehension that force would be used against
her if she did not otherwise comply. Durgin v. Cohen, 168 Minn. 77, 209 N.W. 532
(1926). The jury, instructed that an informed and reasoned consent is a defense to an
allegation of false imprisonment and that a nonconsensual detention could be deemed
consensual if one's behavior so indicated, exonerated defendants with respect to the false
imprisonment claim.

[1] [2] The period in question began on Monday, May 24, 1976, and ceased on
Wednesday, June 9, 1976, a period of 16 days. The record clearly demonstrates that
Susan willingly remained in the company of defendants for at least 13 of those days.
During that time she took many excursions into the public sphere, playing softball and

Introduction to Tort Law                                                       Professor Chiesa

picnicking in a city park, roller-skating at a public rink, flying aboard public aircraft and
shopping and swimming while relaxing in Ohio. Had Susan desired, manifold
opportunities existed for her to alert the authorities of her allegedly unlawful detention; in
Minneapolis, two police officers observed at close range the softball game in which she
engaged; en route to Ohio, she passed through the security areas of the Twin Cities and
Columbus airports in the presence of security guards and uniformed police; in Columbus
she transacted business at a bank, went for walks in solitude and was interviewed by an
F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did
she complain of her treatment or suggest that defendants were holding her against her
will. If one is aware of a reasonable means of escape that does not present a danger of
bodily or material harm, a restriction is not total and complete and does not constitute
unlawful imprisonment. Damages may not be assessed for any period of detention to
which one freely consents. See Davis & Allcott Co. v. Boozer, 215 Ala. 116, 110 So. 28
(1926); Restatement (Second) of Torts s 36, Comment a (1965); 4 Minnesota Practice
JIG II, 504 G-S (2d ed.1974).

[3] In his summation to the jury, the trial judge instructed that to deem consent a
defense to the charge of false imprisonment for the entire period or for any part therein, a
preponderance of the evidence must demonstrate that such plaintiff voluntarily
consented. The central issue for the jury, then, was whether Susan voluntarily
participated in the activities of the first three days. The jury concluded that her behavior
constituted a waiver.

We believe the determination to have been consistent with the evidence. See Faniel v.
Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.1979); Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); F. Harper & F. James,
The Law of Torts s 3.10, at 235 (1956). Were the relationship other than that of parent
and child, the consent would have less significance.

To determine whether the findings of the jury can be supported upon review, the behavior
Susan manifested during the initial three days at issue must be considered in light of her
actions in the remainder of the period. Because, it is argued, the cult conditioning process
induces dramatic and non-consensual change giving rise to a new temporary identity on
the part of the individuals whose consent is under examination, Susan's volitional
capacity prior to treatment may well have been impaired. Following her readjustment, the
evidence suggests that Susan was a different person, “like her old self.” As such, the
question of Susan's consent becomes a function of time. We therefore deem Susan's
subsequent affirmation of defendants' actions dispositive.

In Weiss v. Patrick, 453 F.Supp. 717 (D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert.
denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), the federal district court in
Rhode Island confronted a situation similar to that which faces us. Plaintiff, a devotee of
the Unification Church, brought an action for false imprisonment against individuals
hired by her parents to prompt her disassociation from the church. Because*129
plaintiff's mother was dying of cancer, the church authorities permitted her to join her
family for the Thanksgiving holiday. Met at the airport by her mother, she testified that

Introduction to Tort Law                                                      Professor Chiesa

she was restrained against her will in the home of one of the defendants and subjected to
vituperative attacks against the church until she seized an opportunity to flee. Despite the
evidently traumatic experience sustained by plaintiff, the district court found that she
failed to demonstrate a meaningful deprivation of personal liberty, reasoning that “any
limitation upon personal mobility was not her primary concern.” Id. at 722. In so
reasoning, the court underscored a parental right to advocate freely a point of view to
one's child, “be she minor or adult.” To assure freedom, the court observed, “the right of
every person „to be left alone‟ must be placed in the scales with the right of others to
communicate.” Id. (quoting Rowan v. United States Post Office Department, 397 U.S.
728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).

[4] [5] In light of our examination of the record and rules of construction providing
that upon review the evidence must be viewed in a manner most favorable to the
prevailing party, Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976), we
find that a reasonable basis existed for the verdict exonerating defendants of the charge of
false imprisonment. Although carried out under colorably religious auspices, the method
of cult indoctrination, viewed in a light most favorable to the prevailing party, is
predicated on a strategy of coercive persuasion that undermines the capacity for informed
consent. While we acknowledge that other social institutions may utilize a degree of
coercion in promoting their objectives, none do so to the same extent or intend the same
consequences. Society, therefore, has a compelling interest favoring intervention. The
facts in this case support the conclusion that plaintiff only regained her volitional
capacity to consent after engaging in the first three days of the deprogramming process.
As such, we hold that when parents, or their agents, acting under the conviction that the
judgmental capacity of their adult child is impaired, seek to extricate that child from what
they reasonably believe to be a religious or psuedo-religious cult, and the child at some
juncture assents to the actions in question, limitations upon the child's mobility do not
constitute meaningful deprivations of personal liberty sufficient to support a judgment for
false imprisonment.[FN1] But owing to the threat that deprogramming poses to public
order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the
First Amendment requires resort to the least restrictive alternative so as to not impinge
upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d
1213 (1940). [FN2]

FN2. While we decline at this time to suggest a particular alternative, we observe that
some courts have permitted the creation of temporary guardianships to allow the removal
of cult members to therapeutic settings. If the individuals desire, at the end of the
conservatorship they may return to the cult. Actions have also been initiated against cult
leaders on the basis of criminal liability. See generally Delgado, supra, at 73-97.
[6] [7] 2. On appeal, plaintiff challenges the propriety of admissions by the trial
court of evidence regarding her involvement in the activities of The Way. By charging
defendants with intentional infliction of emotional distress and seeking punitive damages,
plaintiff placed the state of mind of defendants at issue. For a court to award punitive
damages, a plaintiff must prove that defendants acted willfully, wantonly and
maliciously. Good faith is a proper defense to punitive damages, even though defendants
might have been mistaken in their belief that a party was in jeopardy or that their actions

Introduction to Tort Law                                                       Professor Chiesa

were correct. *130 Benson Cooperative Creamery Association v. First District
Association, 276 Minn. 520, 151 N.W.2d 422 (1967). Therefore, in determining whether
defendants acted with the requisite degree of malice, the trial court considered
defendants' perceptions of The Way Ministry and their fears for Susan's well-being
relevant and admissible.

[8] [9] [10] The ability of defendants to introduce testimony of their perception of
the ministry's effect upon plaintiff must be weighed against the First Amendment
admonition respecting the free exercise of religion. Although religious belief is protected
absolutely from governmental regulation, religiously motivated conduct is subject to a
balancing test that weighs the interest of the religious group against the state's interest in
regulating or forbidding the activity. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965
(1963). A court may also afford the interest of the religious group less weight if it
considers the belief giving rise to the conduct insincerely held, or if the practice is not
central to the group's system of belief. Id.

At trial, defendants did not act as inquisitors, seeking to admit testimony regarding
plaintiff's religious beliefs, but merely tried to show that their fears for Susan's physical
and emotional well-being were well-grounded. To assess defendants' state of mind, the
trial court admitted evidence purporting to illustrate defendants' fear that The Way's
method of recruitment resembled a process of programmed manipulation devised to allay
the suspicions and anesthetize the rational processes of its targets. Publication by The
Way of a guide on “The „How‟ of Door to Door Witnessing,” instructing recruiters to
focus on “the hungry” and on “individuals whose resistance is temporarily lowered
because of loneliness, worry over exams, or other adolescent crises,” suggests that a
reasonable basis for defendants' fears did indeed exist. The court therefore permitted
references to Susan's psychological and physical condition, the extent and manner of her
participation in the program of the cult, the demands of membership, and her living
conditions during the summer that she “witnessed” for the cult.

[11] The admission of evidence for the purpose of showing good faith may have the
unintended effect of prejudicing a jury by bringing out facts regarding religious belief.
Aware of the potential impact of such testimony, the trial judge instructed the jury on no
fewer than six occasions as to the purpose of the evidence and the context in which it
could be considered and upheld objections to testimony bearing on religious belief. Since
an award of punitive damages rests with the discretion of the jury, Nelson v. Halvorson,
117 Minn. 255, 135 N.W. 818 (1912), to have excluded all evidence bearing a potentially
prejudicial impact would have eviscerated defendants' right to defend against the charge
of intentional infliction of emotional distress. We therefore find that in an action for
intentional infliction of emotional distress, when the record discloses no testimony
impinging upon religious belief, the introduction by defendants of relevant evidence
concerning matters that plaintiff voluntarily placed in issue, such as her religious
association and defendants' state of mind, was admissible and did not violate the First
Amendment admonition respecting freedom of religion.

Introduction to Tort Law                                                       Professor Chiesa

3. Plaintiff next challenges a charge to the jury by the trial judge instructing that when
assessing plaintiff's credibility, the jury could properly take into account whether The
Way was maintaining or financing the law suit. Plaintiff argues that the instruction,
culminating after a lengthy trial involving several causes of action, extensive discovery
proceedings, a plethora of motions and a number of hearings, constituted reversible error.

[12] In the past, this court has observed that a trial court's charge to the jury must be
reviewed in its entirety, interpreting the instructions as a whole and refraining from
considering isolated statements without reference to context. Thomas v. Mueller, 251
Minn. 470, 88 N.W.2d 842 (1958); *131 Lund v. Minneapolis Street Ry., 250 Minn. 550,
86 N.W.2d 78 (1957). At trial, reference was made to whether plaintiff was the real party
in interest or merely a conduit through which other parties were maintaining the action.
As a matter of law, the court ruled that defense inadmissible, subsequently instructing
that such facts could only be considered in determining plaintiff's credibility and
ascertaining appropriate damages. In otherwise instructing the jury, the trial court clearly
and accurately described the torts of false imprisonment and intentional infliction of
emotional distress and ruled as a matter of law that certain defenses asserted by
defendants were inapplicable. The trial court also informed the jury that evidence
implicating The Way could only be considered in the limited context of establishing
whether defendants acted wantonly, willfully or maliciously; that inquiry, in turn, related
only to the assessment of punitive damages and not to the ultimate questions of liability.

[13] In general we believe it unwise to sanction a jury instruction providing that when
a group supports a plaintiff or derives a benefit therefrom, evidence of such support can
be introduced at trial relative to the question of damages. The ultimate effect of such a
ruling might deter litigants from accepting the assistance of unpopular groups fearing that
this evidence could affect the disposition of a case. In NAACP v. Button, 371 U.S. 415,
83 S.Ct. 328, 9 L.Ed. 405 (1963), the United States Supreme Court held such
relationships to be modes of expression and association protected under the First
Amendment. Button concerned the NAACP's practice of advising individuals during
informational meetings of its willingness to commence civil rights litigation on their
behalf. Challenged under a statute forbidding solicitation of legal business by an
organization that retains a lawyer in connection with an action to which it is neither a
party nor has a pecuniary right or liability, the United States Supreme Court found the
statute unconstitutional.

[14] [15] The purpose of a jury instruction is to convey a clear and correct
understanding of the law of the case as it relates to all the parties involved. A charge that
is substantially correct is sufficient when an error has not been given such undue
prominence as to obscure issues of primary significance. St. George v. Lollis, 209 Minn.
322, 296 N.W. 523 (1941); See Gibbon Farmers Elevator Co. v. Herschmann, 160 Minn.
326, 200 N.W. 293 (1924). Therefore, although we find that the trial court may have
erred in instructing that the jury could consider evidence of the cult's financial support in
assessing plaintiff's credibility, because the instruction constituted a small part of an
otherwise commendable exposition and did not affect the ultimate disposition of the case

Introduction to Tort Law                                                       Professor Chiesa

as evidenced by the award of $10,000 in punitive damages, we hold that the commission
of the error, if any, does not merit reversal.

4. Plaintiff further challenges the decision of the trial court, charging that the court erred
by directing a verdict in favor of the plaintiff's former minister, Paul Sorlien. In so doing,
plaintiff attributes to Paul Sorlien a degree of participation in the events in question that
bears no relation to the actual facts of the case.

The active involvement of Paul Sorlien began when he accompanied his parishioner,
Norman Jungclaus, to Moorhead, Minnesota to pick Susan up at the close of her
examinations and then drove them to Minneapolis to the home of Veronica Morgel.
Sorlien had become concerned about Susan following conversations with her parents and
was previously acquainted with Morgel by reason of an informational seminar that they
both attended on the subject of religious cults. The trio arrived at the Morgel residence at
approximately 7 p. m. at which time Sorlien was called away to assist a parishioner who
had been transferred unexpectedly to a Minneapolis hospital. Sorlien returned at
approximately 11 p. m. and consequently was unaware of the circumstances surrounding
Susan's removal to the downstairs bedroom. Susan became hysterical when he walked
downstairs to greet her, and he therefore immediately left the room. The next day Sorlien
again entered the room and observed Susan curled up in a *132 fetal position with her
fingers in her ears. Upon seeing him, Susan once again became hysterical. Sorlien
attributed her hysterical reactions to her indoctrination by The Way that ministers are
“adversary, part of the devil.” Sorlien spent the remainder of the day visiting three
parishioners in three different metropolitan hospitals. On Wednesday, Sorlien was present
but not party to a conversation between Susan and another individual but later that
afternoon Sorlien exchanged pleasantries with Susan and noticed that her appearance and
demeanor were markedly different. On Thursday, he returned to Bird Island to make
funeral arrangements for a parishioner and to teach a confirmation class. He had no other
significant contacts or conversations with the Jungclauses or Susan following his

[16] Under the applicable standard recently reiterated in J. N. Sullivan & Associates,
Inc. v. F. D. Chapman Construction Co., 304 Minn. 334, 231 N.W.2d 87 (1975), we find
the evidence against Paul Sorlien insufficient to present a question of fact for the jury to
decide, and accordingly, uphold the directed verdict of the trial court.[FN3]

5. As a final matter, plaintiff appeals the denial by the trial court of her motion to amend
the complaint for the purpose of substituting the proper names of those previously
identified in the complaint as John Doe, James Roe, Jane Doe and Mary Roe. Also
included in the above motion was the further request to include an additional cause of
action for civil conspiracy under 42 U.S.C. s 1985 (1976).[FN4]

[17] [18] Minn.R.Civ.P. 9.08 provides that when a litigant in his pleadings alleges
ignorance as to the name of an opposing party, the opposing party may be designated by
any name; after discovery of the true name, the pleadings may be amended accordingly.
By identifying the parties in such manner, defendants are on notice that the complaint

Introduction to Tort Law                                                       Professor Chiesa

will be amended. Because of the perfunctory nature of the rule, we conclude that the trial
court erred by failing to permit the substitution. See LaSalle Cartage Co. v. Johnson
Brothers Wholesale Liquor Co., 302 Minn. 351, 225 N.W.2d 233 (1974). In respect to
that part of the motion seeking the addition of a new federal cause of action, however, we
find the trial court did not err. The addition of a new cause of action almost a year after
commencement of the suit would have likely delayed the start of trial or prejudiced the
adverse party. Leave to amend will only be granted when justice so requires.
Minn.R.Civ.P. 15.01.

[19] Neither in her brief nor in her notice of appeal does plaintiff indicate what relief
she seeks as a result of this error. Because plaintiff only sought punitive damages of
$10,000, for which she had already been compensated, the substitution of the remaining
defendants would only have resulted in a symbolic award. Hence, under Minnesota's
harmless error rule, the refusal of the trial court to take such action did not appear to
affect the substantial rights of the parties. Minn.R.Civ.P. 61. We therefore hold that the
failure of the trial court to permit the substitution of the true and correct name of a party
joined in a complaint*133 by a fictitious name does not constitute reversible error when
doing so would have resulted only in a symbolic award.


WAHL, Justice (dissenting in part, concurring in part).
I must respectfully dissent. In every generation, parents have viewed their children's
religious and political beliefs with alarm and dismay if those beliefs were different from
their own. Under the First Amendment, however, adults in our society enjoy freedoms of
association and belief. In my view, it is unwise to tamper with those freedoms and with
longstanding principles of tort law out of sympathy for parents seeking to help their
“misguided” offspring, however well-intentioned and loving their acts may be. Whether
or not, as the majority opinion asserts, The Way of Minnesota, Inc. is a “youth-oriented,”
“pseudo-religious group” which pursues its “fundraising strategy” in such a way as to
inflict physical and psychological harm on its members, emphasis on this characterization
beclouds the purely legal issues which are presented by this appeal.

The first of those legal issues is whether, as a matter of law, any of the defendants in this
case are guilty of false imprisonment of the plaintiff. The elements of the tort of false
imprisonment are (1) words or acts by defendant intended to confine plaintiff, (2) actual
confinement, and (3) awareness by plaintiff that she is being confined. Blaz v. Molin
Concrete Products Co., 309 Minn. 382, 244 N.W.2d 277 (1976). Any imprisonment
“which is not legally justifiable” is false imprisonment, Kleidon v. Glascock, 215 Minn.
417, 10 N.W.2d 394 (1943); therefore, the fact that the tortfeasor acted in good faith is no
defense to a charge of false imprisonment. Accord, Strong v. City of Milwaukee, 38
Wis.2d 564, 157 N.W.2d 619 (1968). Thus, although the majority opinion correctly
concludes that evidence concerning the activities of The Way and the impact of those
activities upon plaintiff may have been relevant to the question of whether defendants

Introduction to Tort Law                                                      Professor Chiesa

acted so willfully and maliciously as to justify an award of punitive damages, such
evidence has little bearing on the issue of defendants' liability for false imprisonment.

The unrebutted evidence shows that defendant Norman Jungclaus, the father of the 21-
year-old plaintiff in this case, took his adult daughter, kicking and screaming, to a small
bedroom in the basement of the Morgel home on Monday, May 23. Norman Jungclaus
admitted that she did not go with him willingly. Plaintiff curled up on the bed, plugged
her ears, and cried. Defendant Perkins testified that plaintiff screamed and cried and
pleaded with several people to let her go, but her pleas were ignored. This situation
continued until 3 a. m. Tuesday. At one point that morning, plaintiff flew at her father,
and he held her arms around her from the back, in his words, “for maybe a half an hour,
until she calmed down again.” Plaintiff testified that defendant Mills told her papers had
been drafted to commit her to Anoka State Hospital if she continued to refuse to
cooperate with the “deprogramming.”

In its memorandum accompanying the order denying plaintiff's motion for judgment
notwithstanding the verdict, the trial court stated:

It should be noted that there must be considerable room for doubt concerning that portion
of the verdict finding that Norman Jungclaus did not participate in a false imprisonment.
The evidence is unrebutted that he picked up his 21-year-old daughter Susan and took her
into the basement without her permission or consent, and against her will. She remained
there several days. However, Plaintiff stated that she was not seeking *134 compensatory
damages against her parents, and only $1.00 in punitive damages.

In that light, judgment notwithstanding verdict as to false imprisonment would be of no
significance in the matter of compensatory damages. And whether or not Mr. Jungclaus's
act was done maliciously or willfully so as to justify $1.00 punitive damages is clearly a
matter for determination by the jury; and not the Court. Hence, judgment notwithstanding
verdict against Norman Jungclaus as to false imprisonment must be denied. On practical
grounds, a new trial will not be ordered for a potential $1.00 recovery in any event.

Thus, the trial court refused to grant judgment against Norman Jungclaus because any
damages awarded would be insignificant. However, plaintiff's complaint sought not only
money damages but an injunction against further interference with her freedoms of
religion, association, and expression. The value to plaintiff of a judgment in her favor,
while not monetary, is nevertheless significant.

The majority opinion finds, in plaintiff's behavior during the remainder of the 16-day
period of “deprogramming,” a reasonable basis for acquitting defendant Jungclaus of the
false imprisonment charge for the initial three days, during which time he admittedly held
plaintiff against her will. Under this theory, plaintiff's “acquiescence” in the later stages
of deprogramming operates as consent which “relates back” to the events of the earlier
three days, and constitutes a “waiver” of her claims for those days. Cases cited by the
majority do not lend support to this proposition. Bustamonte addressed the meaning of
“voluntary consent” to the search of an automobile by police in the context of a challenge

Introduction to Tort Law                                                        Professor Chiesa

based on Fourth Amendment grounds. In Faniel the court found that an employee, who
was given a ride to her home by company personnel who intended to recover
unauthorized electrical equipment, had not proved an absence of lawful consent sufficient
to sustain a finding of false imprisonment.[FN1]

It is clear that Plaintiff has the right to be free of any coercive attempt to speak with her *
* *.
Certainly, parents who disapprove of or disagree with the religious beliefs of their adult
offspring are free to exercise their own First Amendment rights in an attempt, by speech
and persuasion without physical restraints, to change their adult children's minds. But
parents who engage in tortious conduct in their “deprogramming” attempts do so at the
risk that the deprogramming will be unsuccessful and the adult children will pursue tort
remedies against their parents. To allow parents' “conviction that the judgmental capacity
of their (adult) child is impaired (by her religious indoctrination)” to excuse their tortious
conduct sets a dangerous precedent.

Here, the evidence clearly supported a verdict against Norman Jungclaus on the false
imprisonment claim, and no reasonable basis existed for denying judgment
notwithstanding the verdict. The trial court's holding in this regard should be reversed.

The second issue which particularly concerns me was the instruction by the trial *135
court that the jury could consider the fact that The Way paid plaintiff's legal bills in
assessing her credibility and awarding damages. I concur with the court's holding that
such an instruction is error, although in the context of this case harmless error. I write to
emphasize the compelling reasons why such an instruction should not be given. First, the
fact that The Way aided and encouraged plaintiff to bring the lawsuit has little to do with
whether the defendants falsely imprisoned the plaintiff or whether they intentionally
inflicted emotional distress on her. It is not uncommon for a layperson to talk to others
and get advice before bringing a lawsuit. Nor is it uncommon for groups to provide
money and other support to its members as they pursue individual causes of action. The
contributions of the NAACP, which financially assists litigation aimed at eliminating
racial barriers, were recognized, as the majority opinion notes, in NAACP v. Button, 371
U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed. 405 (1963). Such aid not only allows a person
to exercise his or her right to seek redress through our courts, it also effectuates that
fundamental underpinning of our judicial system.

In the instant case, to admit evidence that The Way paid plaintiff's attorneys fees
improperly shifted the jury's attention from the nature of defendants' acts to the
acceptability of The Way. Such a shift of attention could unduly prejudice plaintiff
because she exercised her First Amendment right of association with an unpopular
religious group.

Furthermore, that evidence was irrelevant to the motive for her claim for damages. The
reason plaintiff altered the amounts of compensation sought from her parents was,
according to her testimony, her belief that she had to sue for money. Only after the suit

Introduction to Tort Law                                                      Professor Chiesa

was commenced did she learn that she could sue for legal protection. Plaintiff was
entitled to seek compensation from the defendants individually, all together, or in any
combination. Therefore, that she chose to sue her parents for a token amount has little to
do with who was paying the legal fees.

The fact that a group or others support a plaintiff and may derive some benefit unrelated
to plaintiff's cause of action should not be introduced at trial and considered by the jury
as it determines plaintiff's credibility and the amount of damages to be awarded. The
ultimate effect can only be to deter plaintiffs and defendants from accepting assistance
from groups or causes which may not be popular in our society. This would mean that in
suits like the present one, plaintiffs with unpopular beliefs who cannot afford costly legal
representation must forgo their rights to seek redress in our courts or utilize the courts at
the risk that evidence of support from their minority religious or political group may be
used to undermine all or part of their claims.

Lastly, I would address plaintiff's claim that the trial court erred in denying her motion to
amend her complaint or add a new cause of action. I agree that the motion was properly
denied because it was untimely, but I would not conclude, as suggested by footnote 4 of
the majority opinion, that defendant parents' attempts to “deprogram” their daughter from
her religious beliefs did not constitute a violation of her rights under 42 U.S.C. s 1985(3).
Although one federal court has so held, see Weiss v. Patrick, 453 F.Supp. 717, 722
(D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61
L.Ed.2d 296 (1979), a number of courts have reached the contrary conclusion. In Augenti
v. Cappellini, 84 F.R.D. 73 (M.D.Pa.1979), for example, defendants' arguments that their
attempts to deprogram their son “were motivated solely by parental concern * * * to
further his physical and mental health” did not persuade the court that the “invidiously
discriminatory animus” necessary for a s 1985(3) action was lacking. Id. at 78. Several
other cases interpreting the legislative history of s 1985(3) have determined that the
protection of the provisions does extend to religious groups. See Jackson v. Associated
Hospital Service, 414 F.Supp. 315 (E.D.Pa.1976), aff'd, 549 F.2d 795 (3rd Cir.), cert.
denied, *136 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Rankin v. Howard, 457
F.Supp. 70, 74-75 (D.Ariz.1978); cf. Mandelkorn v. Patrick, 359 F.Supp. 692, 697
(D.D.C.1973). In reaching this conclusion, the court in Baer v. Baer, 450 F.Supp. 481
(N.D.Cal.1978) observed:

While religious status may differ from racial status because it is not a congenital and
inalterable trait, membership in a minority religious group, like membership in a minority
racial group, has often excited the fear, hatred and irrationality of the majority. Two
thousand years of human history compellingly prove that no easier road to martyrdom is
found than in adherence to an unpopular religious faith. For these reasons, and because
the legislative history does not indicate otherwise, this court concludes that religious
discrimination may be encompassed by the terms of s 1985(3).

Introduction to Tort Law                                                      Professor Chiesa


MacLAUGHLIN, District Judge.
The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict
against the defendants on his claims that the defendants falsely imprisoned him and
violated his civil rights during a deprogramming attempt in 1982. Both sides have
submitted briefs on the question and the Court has heard oral argument.

After careful consideration the Court has decided as follows:

1. Plaintiff's motion for a directed verdict on the issue of false imprisonment is granted
and the Court holds, as a matter of law, that plaintiff William Eilers was falsely
imprisoned without legal justification.

2. Plaintiff's motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted
as to certain elements of the plaintiff's claim that a conspiracy on the part of the
defendants deprived him of certain of his federal constitutional rights.

The evidence in this case has established the following facts. The plaintiff William Eilers
and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota
in the early afternoon of Monday, August 16, 1982, by their parents and *1095 relatives
and by the defendant deprogrammers who had been hired by the parents of the plaintiff
and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The
couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for
Sandy's pre-natal examination.

At the time of the abduction, Bill and Sandy Eilers were members of the religious group
Disciples of the Lord Jesus Christ. There is ample evidence that this group is an
authoritarian religious fellowship directed with an iron hand by Brother Rama Behera.
There is also evidence that Bill Eilers' personality, and to some extent his appearance,
changed substantially after he became a member of the group. These changes were
clearly of great concern to members of the plaintiff's family. However, other than as they
may have affected the intent of the parents of Bill and Sandy Eilers in the actions they
took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus
Christ should not be, and are not, on trial in this case.

While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches
at the time due to an earlier fall, was grabbed from behind by two or more security men,
forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.FN1
Forcibly resisting, he was carried by four men to a room on the top floor of the
dormitory-style building. The windows of this room were boarded over with plywood, as

Introduction to Tort Law                                                     Professor Chiesa

were the windows in his bathroom and in the hallway of the floor. The telephone in the
hallway had been dismantled.

The plaintiff was held at the Tau Center for five and one-half days and subjected to the
defendants' attempts to deprogram him. Shortly after his arrival at the Tau Center, and
after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He
remained handcuffed to the bed for at least the first two days of his confinement. During
this initial period, he was allowed out of the room only to use the bathroom, and was
heavily guarded during those times. On one occasion, the plaintiff dashed down the hall
in an attempt to escape, but was forcibly restrained and taken back to the room. After
several days of resistance, the plaintiff changed tactics and apparently pretended to
consent to his confinement.

The defendants and the plaintiff's relatives had agreed in advance of the abduction that
the plaintiff would be kept at the Tau Center for one week, regardless of whether the
plaintiff consented to their actions. At no time during the week was the plaintiff free to
leave the Tau Center, nor at any time were reasonable means of escape available to him.
Three of the eight people hired by the parents were designated “security men.” These
individuals, described by witnesses as at least six feet tall and weighing over 200 pounds,
guarded the exits on the floor at all times.

On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center
to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his
first opportunity to escape and jumped from the car in which he was riding. Local
residents, attracted by the plaintiff's calls for help, assisted the plaintiff in making his
escape and the police were summoned. FN2

[1] In considering the plaintiff's motion for a directed verdict, the Court is required to
view the evidence in the light most favorable to the defendants and to resolve all conflicts
in the evidence in the defendants' favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375
(8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors
could not differ as to the conclusions to be drawn from the evidence. Id.

The plaintiff has alleged two main causes of action against the defendants: false
imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in
violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

A. False Imprisonment
[2] The plaintiff's first claim is that the defendants' conduct in confining him at the Tau
Center constituted false imprisonment for which the defendants had no legal justification.
False imprisonment consists of three elements:

1) words or acts intended to confine a person;

Introduction to Tort Law                                                       Professor Chiesa

2) actual confinement; and

3) awareness by the person that he or she is confined.

Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976);
Restatement (Second) of Torts § 35 (1965).

[3] The evidence in this case has overwhelmingly established each of the elements of
false imprisonment. By their own admission, the defendants intended to confine the
plaintiff for at least one week. While the defendants maintain that their purpose was to
help the plaintiff, it is not a defense to false imprisonment that the defendants may have
acted with good motives. Malice toward the person confined is not an element of false
imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567, 157 N.W.2d 619, 621
(1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law
of Torts 48 (4th ed. 1971).

[4] [5] There is also no question that the plaintiff was actually confined. Relying on
the Minnesota Supreme Court's decision in Peterson v. Sorlien, 299 N.W.2d 123, 129
(Minn.1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the
defendants contend that there was no actual confinement because there is evidence that
the plaintiff consented to the defendants' actions, at least by the fourth day of his
confinement. FN3 The plaintiff, in contrast,*1097 has testified that he merely pretended
to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is
not a defense to false imprisonment. Many people would feign consent under similar
circumstances, whether out of fear of their captors or as a means of making an escape.
But in this case, unlike the Peterson case relied on by the defendants,FN4 it is undisputed
that the plaintiff was at no time free to leave the Tau Center during the week in question,
nor were any reasonable means of escape available to him. Under these circumstances,
the Court finds, in agreement with many other authorities, that the plaintiff's apparent
consent is not a defense to false imprisonment. 32 Am.Jur.2d False Imprisonment § 15
(1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a
matter of law, that the plaintiff has proven the necessary elements of false imprisonment.

The next question is, given that the defendants falsely imprisoned the plaintiff, were their
actions legally justified so as to preclude liability for false imprisonment? As justification
for their actions, the defendants rely on the defense of necessity. They claim that the
confinement and attempted deprogramming of the plaintiff was necessary to prevent him
from committing suicide or from otherwise harming himself or others. See State v.
Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).

[6] The defense of necessity has three elements.FN5 The first element is that the
defendants must have acted under the reasonable belief that there was a danger of
imminent physical injury to the plaintiff or to others. FN6 State v. Johnson, 289 Minn.
196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961,
179 Cal.Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.App.1975);
Restatement (Second) of Torts § 892(D) comment a (1979).

Introduction to Tort Law                                                        Professor Chiesa

*1098 It is not clear that such a danger existed on August 16, 1982. The alleged threats of
suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that
letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce
Peterson, the psychiatric social worker who personally interviewed the plaintiff on July
26, 1982, concluded in her report, and reported to the plaintiff's relatives, that the plaintiff
was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light
most favorable to the defendants, the Court will assume for purposes of this motion that
the plaintiff was in imminent danger of causing physical injury to himself or to others.

The second and third elements of the necessity defense are intertwined. The second
element is that the right to confine a person in order to prevent harm to that person lasts
only as long as is necessary to get the person to the proper lawful authorities. See State v.
Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d
580 (1963). The third element is that the actor must use the least restrictive means of
preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179
Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf.
Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are
implicated, first amendment requires resort to least restrictive alternative).

[7] In this case, the defendants' conduct wholly fails to satisfy either of these elements
of the necessity defense. Once having gained control of the plaintiff, the defendants had
several legal options available to them. They could have:

1) turned the plaintiff over to the police;

2) sought to initiate civil commitment proceedings against the plaintiff pursuant to
Minn.Stat. § 253B.07 (1982);

3) sought professional psychiatric or psychological help for the plaintiff with the
possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05

At no time did the defendants attempt, or even consider attempting, any of these lawful
alternatives during the five and one-half days they held the plaintiff, the first five of
which were business days. Instead, they took the plaintiff to a secluded location with
boarded-up windows, held him incommunicado, and proceeded to inflict their own crude
methods of “therapy” upon him-methods which even the defendants' own expert witness
has condemned. Well aware that the police were searching for the plaintiff, the
defendants deliberately concealed the plaintiff's location from the police.

It must be emphasized that the Minnesota Legislature has prescribed specific procedures
that must be followed before a person can be deprived of his or her liberty on the basis of
mental illness. Minn.Stat. § 253B.07 et seq. (198 2); see generally Janus and Wolfson,
The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41
(1983). Those procedures include examination of the proposed patient by qualified

Introduction to Tort Law                                                      Professor Chiesa

professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the
proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural
protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are
afforded the proposed patient at all stages of this civil commitment proceeding.
Obviously, none of these protections were afforded the plaintiff in this case.

Minnesota law also provides that, in situations where there is not time to obtain a court
order, a person may be admitted or held for emergency care and treatment in a hospital,
without a court order, upon a written statement by a licensed physician or psychologist
that the person is mentally ill and is in imminent danger of causing injury to himself or to
others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case-unlicensed and
untrained individuals-made no effort to obtain any such *1099 statement from a licensed
physician or psychologist.

[8] The defendants' failure to even attempt to use the lawful alternatives available to
them is fatal to their assertion of the necessity defense. Where the Legislature has
prescribed specific procedures that must be followed before a person can be deprived of
his or her liberty on the ground of mental illness, not even parents or their agents acting
under the best of motives are entitled to disregard those procedures entirely.FN7

The Court has assumed for the purposes of this motion that the defendants were justified
in initially restraining the plaintiff based upon their belief that he was in imminent danger
of harming himself or others. But even under those circumstances, the defense of
necessity eventually dissipates as a matter of law. No specific time limit can be set,
because the period during which an actor is acting out of necessity will vary depending
on the circumstances of each case. In this particular case, however, where the defendants
held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort
to lawful alternatives available to them, the Court could not sustain a jury verdict in the
defendants' favor on the issue of false imprisonment. Accordingly, the Court rules as a
matter of law that the plaintiff was falsely imprisoned without justification. The issue of
what amount of damages, if any, the plaintiff suffered from this false imprisonment is a
question for the jury.

B. Section 1985(3)
[9] The next claim upon which the plaintiff has moved for a directed verdict is that the
defendants conspired to and did deprive him of his federal constitutional rights in
violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of
the elements of this claim.

A cause of action under section 1985(3) consists of the following elements:

1) a conspiracy;

Introduction to Tort Law                                                       Professor Chiesa

2) for the purpose of depriving any person or class of persons of the equal protection of
the laws or of equal privileges and immunities under the laws;

3) an act or acts in furtherance of the conspiracy; and

4) an injury to the person or property of a citizen or a deprivation of the rights and
privileges of any citizen.

Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338

[10] Three of these elements are clearly present in this case. By their own admission,
the defendants planned and conspired to abduct the plaintiff and to hold him against his
will. They committed several acts in furtherance of this conspiracy including seizing the
plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there
against his will for five and one-half days. These actions were in clear violation of the
plaintiff's constitutional rights, including his right not to be deprived of liberty without
due process of law, see Taylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert.
denied, *1100 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983), and his right to
freedom of interstate travel,FN8 see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981),
cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a
matter of law that the plaintiff has established the first, third, and fourth elements of his
section 1985(3) cause of action.

[11] The remaining element is that the conspiracy be for the purpose of depriving the
plaintiff of the equal protection of the laws. The United States Supreme Court has
interpreted this element as requiring that the defendants' conduct be motivated by class-
based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In
other words, in order for the plaintiff to recover under section 1985(3), the defendants
must have taken action against him because of his membership in a group or class that is
protected by that statute. The Court has previously ruled in this case that the religious
group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g.,
Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S.
1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th
Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v.
Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512
F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect
Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229
(1979). The remaining question is whether the defendants took action against the plaintiff
because of an animus toward that group or, as the defendants contend, because of a
concern for the welfare of the plaintiff. The Court finds that the defendants' motivation is
an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84
F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff's motion for a
directed verdict on this element of the plaintiff's section 1985(3) cause of action.

Introduction to Tort Law                                                    Professor Chiesa

C. Conclusion
This will not be a popular decision. While the Court has substantial sympathy for the
feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to
uphold the law and the Constitution of the United States. If the basic rights of an
American citizen are not recognized in a federal court by a federal judge, where will they
be recognized?

Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict
is granted as to his claim for false imprisonment (Count IV of the Second Amended
Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the
Second Amended Complaint) described herein. The plaintiff's motion is in all other
respects denied.


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