TO: Deborah S. Gordon

FROM: 11773476

DATE: September 19, 2008

RE: Elizabeth Smallwood; whether Smallwood states a claim sufficiently outrageous to support the intentional infliction of emotional distress

Question Presented
Under Florida law, does Smallwood state a cause of action sufficiently satisfying the outrageousness element of the intentional infliction of emotional distress if her neighbor Melnyk was merely acting within his legally permissible rights?
Brief Answer
Probably not. Smallwood’s complaint probably falls within the scope of mere indignities or unpleasantness, which is insufficient to constitute outrageousness. In addition, aggregate factors used by the courts (known susceptibility or exercising unequal power) if applied to Smallwood’s claim are unlikely to reach the level of severity found in the previous cases. Furthermore, Melnyk may escape liability even if the court finds outrageous conduct because he was acting within his legally permissible rights.
Facts
Our client is Elizabeth Smallwood (“Smallwood”), who has a dispute with her neighbor, Mike Melnyk (“Melnyk”). Melnyk and his wife moved in next to Smallwood on March 15, 2007. The dispute has been ongoing, but the major event that brought upon Smallwood’s complaint occurred on June 1, 2007. That night, Smallwood went for a swim in her cove when Melnyk’s security lights were off. When Smallwood entered the water, Melnyk’s lights went on. Melnyk headed toward his own beach with several guests.
At this point, Smallwood attempted to remain discreet. Her teeth then began to chatter and she said to Melnyk, “Could you turn off your lights so I can get out of the water?” Melnyk responded, “I’m not decent. I’ll turn off when we’re through using our beach, and not before.” Consequently, Smallwood exited the water and ran to her robe on her beach. Smallwood said she