On July 2, 2009, the California Supreme Court decided Hughes v. Pair, in which the plaintiff alleged the defendant used his position as a trustee to seek sexual favors. After being rebuffed, the defendant allegedly said, "I'll get you on your knees eventually. I'm going to fuck you one way or another."
The Supreme Court affirmed the trial court's decision granting summary judgment in favor of the defendant, reasoning the conduct was not sufficiently severe or pervasive for liability under Civil Code section 51.9 or the common law tort of Intentional Infliction of Emotional Distress (IIED).
It is difficult to determine when summary judgment should be granted on the ground that conduct was not sufficiently outrageous or did not cause sufficient distress for purposes of a IIED claim. What is "outrageous" and what constitutes "severe" distress appear to be issues of fact that--in most instances--are left to a jury. It is hard to say what "no reasonable juror" would find "outrageous." Unfortunately, this decision does not help except to add another specific factual situation to the pile of failed claims. Has the court has simply given up on creating a more manageable standard?
Discussion of how life-experiences influence judging has been widespread with the Sotomayor nomination. This case provides a good example of how a adjudicator's life-experience and history can matter. A more thin-skinned court might see a threat to "fuck" someone over unless they have sex with them as "outrageous."
Also, the California Supreme Court did not hesitate to use the taboo word "fuck" when it was directly relevant to their decision. (Avoiding the word "fuck" in the Hughes opinion would have been somewhat incongruous with holding that the defendant's statement was not outrageous.) In contrast, the prudes in the United States Supreme Court could not bring themselves to write out (or say during argument) the dangerous "F- and S-Words", otherwise known as "indecent expletives," in its recent Federal Communications Commission v. Fox Television Stations, Inc opinions. Will Sotomayor bring some of the language of Bronx to the court?