The Tort of Outrage and Some Objectivity about Subjectivity

Abstract The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.” The Article challenges this conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that threats levelled with awareness of a target´s inability to follow through on the biologically reflexive fight or flight response produce physiologically maladaptive distress. In contrast, threats to which a target can freely respond produce benign, adaptive, stress. Consequently, defendant aggression is “outrageous” when it exploits a plaintiff’s known inability to execute a prosocial response. This science-based model of “outrageousness” provides a neutral baseline against which to evaluate the critique that the tort necessarily requires subjective evaluations of defendant behavior. When plaintiff paralysis results from external dynamics the defendant recognized and exploited, jurors need not assign priority to either the plaintiff’s or the defendant’s worldview to find a wrong. But when plaintiff paralysis results from internal feelings of powerlessness that may stem from race or gender experience, jurors must credit the plaintiff’s experience and disregard the defendant´s apparent ignorance of it in order to find a wrong, a process that appears to subjectively prioritize one worldview over another. So whether liability is objective or subjective in a given case turns on whether the impediment to plaintiff action was external or internal. In its concluding section, the Article undertakes an empirical examination of jury verdicts to determine the relative frequency of “objective” and “subjective” liability assignments. It finds that juries are most likely to assign liability in situations where plaintiff paralysis arose from external, objectively observable impediments recognized by defendants. In other words, outrage liability typically stigmatizes behavior that is objectively understood by both the defendant and the community at large to be antisocial. That said, juries occasionally assign liability where a woman or a person of color felt paralyzed by perceived powerlessness the defendant may not have appreciated. The Article ultimately suggests that this small but persistent segment of “subjective” verdicts – far from demonstrating the tort’s illegitimacy – highlights the social power of private injury law.