Memorandum
To: Partner
From: Associate
Re: Gorski v. Clifton, Potential Intentional Infliction of Emotional Damages Claim

Questions Presented

I. Do comedian Tony Clifton’s abusive verbal remarks and conduct toward Bob Gorski constitute extreme and outrageous conduct that goes beyond the tolerable bounds of society, where Clifton ridiculed Gorski’s looks, weight, ethnicity and intelligence, threw him off of the stage, and poured a glass of water on his head? II. Even if such conduct can be considered extreme and outrageous, was it legally permissible given that they occurred during Clifton’s comedy routine, and Gorski volunteered to go up on stage even though he knew that Clifton’s act was of a course and demeaning nature, but where Clifton arguably went beyond what Gorski could have anticipated by volunteering?

Brief Answers

I. No. Clifton’s actions against Gorski were insulting and damaging. However, the conduct is not of a degree that the courts would seem to recognize as extreme and outrageous, particularly because Gorski voluntarily submitted to Clifton’s authority and cannot claim to be especially susceptible to emotional distress.

II. Yes. Even if Clifton’s conduct is extreme and outrageous, the circumstances surrounding the act make it legally permissible.

Statement of Facts

Our client, Bob Gorski, seeks to recover damages for intentional infliction of emotional distress (IIED) allegedly caused by the conduct of comedian Tony Clifton. On August 21, 2008 Gorski went to the Bust-a-Gut Comedy Club in Miami, Florida where Tony Clifton was performing. The performance began with Clifton berating an audience member (not Gorski) for responding verbally to his routine. Clifton came down into the audience and spoke to him in a harsh tone. Then, returning to the stage, he asked for five volunteers. Gorski raised his hand and Clifton selected him along with four others. The five volunteers joined Clifton on the stage. Once assembled, Clifton asked the volunteers for their names. He learned that our client, like the previous volunteer, had a Polish surname and stated. “All right, both of yous can leave. If you’re trying to be funny…you both Polish? I have nothing against Polish people but the thing is if you gonna come up here and act stupid and you make jokes…” He then proceeded to repeat Bob’s name in a drawn out manner, “Boooob” seven times and asked him “How many Polish does it take to screw in a light bulb, Bob?” Bob answered while laughing and through Clifton’s multiple interjections of “C’mon Bob.” Clifton next asked the volunteers to clap along with a song. Gorski clapped at the wrong time. Clifton addressed him, repeating “Are you trying to be funny?…Why don’t you get off the stage?” and asked Gorski about his profession. Learning that he worked in a restaurant, Clifton proceeded to call him “fatso” twice and asked if he was growing “a bowling ball” in his stomach. Clifton then decided to return to the clapping routine. Gorski again clapped at the incorrect moment and was instructed to “GET OFF!” the stage, which he did. Reconsidering, Clifton invited him back up on stage. The audience clapped in approval and Gorski returned to the stage. Then asking, “You want to see some humor?” Clifton poured a glass of water on Gorski’s head. Gorski left the stage. The audience reacted with enthusiasm when Clifton promised not to return. After the preceding encounter, Gorski returned home and went straight to his room. Gorski claims to be a different man and “an emotional wreck.” He has been unable to sleep or eat, has become unresponsive and unsociable, and is unable to work. He has no history of emotional susceptibility or distress and has not yet sought psychiatric counseling.

Discussion

I. Clifton’s actions were not extreme and outrageous such that they were beyond all bounds tolerable to society.
Goreski will not be able to establish a cause of action for IIED. In order to succeed in an action for IIED, a plaintiff must prove four elements: “(1) the wrongdoer’s conduct was intentional or reckless…(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.” Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-9 (Fla. 1985). Elements (1), (3), and (4) are unlikely to be at issue, because there is no question that Clifton’s act was intentional, and there are no facts to dispute Mr. Gorski’s claim that he suffered severe emotional distress as a result of the act. Accordingly, element (2), whether Clifton’s conduct was extreme and outrageous, is the only issue in dispute. Clifton’s behavior does not meet the standards of extreme and outrageous conduct as established by previous holdings. The Court in Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-9 (Fla. 1985), defined extreme and outrageous conduct by reference to the Restatement (Second) of Torts §43:
Liability has been found only where the conduct has been so outrageous n character, and so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, Outrageous!

In Dominguez v. Equitable Life Assurance Soc’y of the United States, 438 So. 2d 58 (Fla. Dist. Ct. App. 983), the court cited to the Restatement (Second) of Torts §46 to describe two contexts in which outrageousness can arise:
[1] The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relationship with the other, which gives him actual or apparent authority over the other, or power to affect his interests…
[2] The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.

Id. at 62. However, courts have limited the scope of conduct considered outrageous, stating that “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” cannot constitute outrageous conduct. Scheller v. American Med. Int’l. Inc., 502 So. 2d 1268, 1271 (Fla. Dist. Ct. App. 1987). “Plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Id. at 1271.
In Dominguez, the court concluded that the outrageous conduct necessary to establish IIED resulted from an abuse of authority over a person who was particularly susceptible to emotional distress. The plaintiff, Dominguez, purchased a disability insurance policy with Equitable Life and shortly thereafter suffered severe mental and physical injuries in an automobile accident. Dominguez did not recover from his injuries, but an agent of Equitable Life approached him and falsely claimed to have received a letter from the doctor stating that he was no longer disabled. The agent then tried to persuade Dominguez to sign a paper agreeing that he was no longer entitled to disability benefits. The court reasoned that the outrageousness of this conduct stemmed from [1] the particular relationship between the plaintiff and the defendant and [2] the susceptibility of the plaintiff to emotional distress. The defendant had a professional responsibility to deal with her client in a trustworthy manner, especially because of his mental disabilities. This relationship between the parties and the inferior mental capacities of the plaintiff were key factors in determining that the conduct was outrageous. Similarly, the plaintiff’s young age in Korbin v. Berlin, 177 So. 2d 551 (Fla. Dist. Ct. App. 1965), gave the defendant a position of authority, the misuse of which contributed to the finding of outrageousness. In that case, the defendant deliberately approached the six-year-old plaintiff and made false statements slandering the child’s mother and causing the child severe distress. The court held that the conduct was outrageous because the plaintiff was particularly vulnerable to the remarks because of her age and held the defendant liable. In contrast, in Scheller, the court found that conduct by agents of the defendant, a hospital and its owner, towards plaintiff, a physician employee of the hospital, did not constitute outrageous conduct. In that case, defendant, a hospital and its owner, fired the plaintiff from his position as director of the laboratory. The plaintiff sued the hospital and received a substantial verdict. The hospital appealed the verdict and during that process caused emotional distress to the plaintiff by the conduct of its agents. The court found that, even in the aggregate, the conduct could not be considered outrageous as towards an adult of standard sensibilities, even where those acts interfered with the plaintiff’s profession. Scheller, 502 So. 2d at 1271. Similarly, in Slocum v. Food Fair Stores of Florida, Inc., 100 So. 2d 396 (Fla. 1958), where the court found that a “mere vulgarity” would not constitute outrageous behavior. The plaintiff, an adult female with a heart condition, approached a clerk and asked the price of an item. He responded, “If you want to know the price, you’ll have to find out the best way you can***you stink to me.” Id. At 396-97. The woman later suffered a heart attack and severe emotional damage. The court held that the remarks were not “intended to have real menacing or serious effect” and, regardless of the consequences, the defendant was not liable. Id. at 398. In the instant case, the conduct of Clifton against Gorski is similarly deplorable, but does not extend beyond the bounds tolerable to society. Defendant will argue that Gorski does not possess either criterion from Dominguez that would make him particularly vulnerable to Clifton’s actions. Unlike the plaintiffs in Korbin and Dominguez, Gorski does not meet the first criterion of unequal authority because he was not inferior in position to Clifton, nor did Clifton have the power to affect his interests. Gorski could argue that Clifton’s control over the performance and the microphone constituted a sort of authority to which Gorski was subject as a mere audience member. In other words, the fact that Clifton controlled the audience – which in turn controlled Gorski through tremendous peer pressure – makes the case like Dominguez, where the party in a position of authority abused that position for their own gain. Dominguez, 438 So. 2d at 58. Clifton will respond that Gorski retained the right to leave the comedy club at any moment and thereby escape any such authority. Although overcoming peer pressure is difficult, it is not insurmountable. Gorski could have walked out of the club at any moment. Furthermore, there was no peer pressure for Gorski to volunteer initially. Gorski choose to volunteer, even after hearing the first rude exchange with another audience member, which provided a taste of Clifton’s humor. Just as in Scheller, where the physician retained substantial authority against his employer, Scheller, 502 So. 2d at 1271, Gorski was not truly vulnerable due to an unequal power relationship. Gorski also fails to demonstrate emotional vulnerability. Clifton can argue that, unlike the plaintiff in Korbin, Gorski is an adult with normal mental and emotional capacities. Because of his normal mental state, age, and maturity, Gorski cannot be considered particularly susceptible to emotional distress. Gorski can point to his sheepish reaction to the comedy routine to show that he was not truly a willing participant in the act, once it became inflammatory and personal. He can draw similarities to Dominguez, where the plaintiff was seriously disabled, a condition which one can assume made him a target for the conduct in that case. Dominguez, 438 So. 2d at 58. Given the nature of Clifton’s act, few people would agree that Clifton would have similarly targeted a self-assured and confident volunteer. Nonetheless, the fact that Gorski volunteered despite knowledge of the nature of Clifton’s comedy act seems to weigh against a finding that he was particularly susceptible to emotional distress, and certainly that Clifton had any knowledge of such susceptibility. Finally, Clifton’s actions do not seem to fall into the category of the type of conduct considered “outrageous.” Clifton can argue that the jokes regarding Gorski’s ancestry and weight are analogous to the remarks in Slocum, which were not considered extreme or outrageous, but were characterized as “mere vulgarities.” Although distasteful, the remarks were not sufficient to offend an adult of ordinary sensibilities. In fact, Gorski himself participated in telling a Polish joke. Accordingly, Tony Clifton’s conduct toward Gorski was not outrageous, as it did not go beyond all bounds tolerable to society, but was more like a meaningless abusive expression aimed at a willing participant.

II. Even if there were sufficient evidence to prove that Clifton’s conduct was extreme and outrageous, his acts would be legally permissible because of the context of the comedy show.

The facts in the instant case also establish that Goreski’s claim for intentional infliction of emotional distress is prohibited because Clifton’s conduct, within the context of a comedy show, was privileged. The Restatement (Second) of Torts §46 (1965), as cited in Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985), notes that “conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances.” The existence of a privilege will extinguish any right to recovery for intentional infliction of emotional distress. Id.
In Metropolitan Life, the plaintiff held an insurance policy from the defendant. The plaintiff’s wife needed extensive care the next year due to Alzheimer’s disease, but the company required proof of ineligibility for Medicare before it would proceed with payments. The plaintiff did not provide this evidence, although he knew of the requirement; consequently the court held that the company’s withholding of payments was legally permissible. Because the conduct was permissible, the company was not liable for resultant emotional distress. In contrast, in Liberti v. Walt Disney World Co., 912 F. Supp. 1494 (M.D. Fla. 1995) the conduct was not permissible and did not confer privilege. In this case the defendants, a group of female employees, were unknowingly used as bait to catch a peeping tom. Disney knew for three months that a male employee was videotaping the women changing and using the bathroom and continued to permit his access to the women. Disney then organized a “sting” operation to catch the peeping tom, still without informing the women. The operation itself permitted the taping to continue for over one hour before security apprehended the man. The women successfully sued for IIED. The court concluded that Disney’s failure to inform or to warn the women about the situation exceeded legal permissibility.
In Metropolitan Life, the defendant knew what was needed to receive payments and consented to those terms by signing the contract of insurance. However, in Liberti, the defendants were kept uninformed and thus did not have an opportunity to consent to their use as bait or to modify their conduct. Thus, legal permissibility seems to be connected with the plaintiff’s knowledge of and consent to the conduct. Plaintiff’s consent to the conduct complained of, therefore, correlates to privilege in conduct. In the instant case, the circumstances of Clifton’s performance were privileged because the context of “comedy club” conveyed sufficient information to Gorski to allow him to make free and informed decisions about his conduct. Gorski was not an ignorant victim in the same way as the Liberti plaintiffs were. First, the venue of a comedy club is a place of informal entertainment where audience participation is not unusual. Attendance at such a venue constitutes an implied consent to be a part of a comedian’s performance. Second, Gorski was given a taste of Clifton’s humor before he volunteered. Clifton opened his act with a rude interchange with another audience member and established the tone of his humor. Gorski, being an adult and having witnessed that interchange, could have refrained from volunteering and thereby from becoming subject to Clifton’s insults.
Gorski will respond that he did not actually consent to the abusive conduct because he was only consenting to be part of an audience participation song. Gorski will suggest that, unlike Metropolitan Life, where the refusal to provide insurance benefits was specifically agreed to under the terms of the contract, the personal abuse by Clifton exceeded the scope of the limited consent that might have been granted by Gorski. Gorski, however, voluntarily returned to the stage for a second dose of insults, knowing the abusiveness of the humor. This return suggested a willingness to participate in the antics and gave Clifton the privilege to use him for his comedy. Accordingly, Clifton’s conduct was permissible given the specific circumstances and Gorski’s implied consent to those circumstances and is thus “privileged” under the law.

CONCLUSION

Bob Gorski will not be able to pursue successfully a cause of action for intentional infliction of emotional distress (IIED) against Clifton. To succeed in an action for IIED, a plaintiff must prove four elements: (1) the wrongdoer’s conduct was intentional or reckless…(2) the conduct was outrageous; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe. The only element that will be contested in this case is whether the conduct was extreme and outrageous. In this case, the conduct is not of a degree that courts recognize as extreme and outrageous. First, Gorski voluntarily submitted to Clifton’s authority as the comedian on stage. Further, Gorski cannot claim to be especially susceptible to emotional distress, as he is an adult. At worst, the conduct constituted “mere vulgarity” which was not meant to have real meaning or serious effect. Furthermore, even if Clifton’s conduct was extreme and outrageous, the circumstances surrounding the act make it legally permissible and thus privileged. Therefore, it is not advisable to pursue a claim against Tony Clifton for IIED.