Tort Notes

THE TORT OF
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
UNDER VIRGINIA LAW

A plaintiff must show that the defendant's conduct:
(1) is intentional or reckless;
(2) offends generally accepted standards of decency or morality;
(3) is causally connected with the defendant's emotional distress; and
(4) caused emotional distress that was severe.

Amended Complaint of Plaintiff (Jerry Falwell)
Answer of Defendant (Hustler Magazine)
Key Instructions to Jury

AMENDED COMPLAINT

JURY TRIAL DEMANDED

Reverand Jerry Falwell, plaintiff herein, by his attorneys, respectfully represents unto this Court as follows:

THE PARTIES

1.  Plaintiff is a fundamentalist minister and a citizen of the State of Virginia, whose activities are centered in Lynchburg, Virginia.

2.  Defendant Larry C. Flynt is, upon information and belief, a citizen of the State of California.  Upon information and belief, Flynt is the president of both Hustler Magazine, Inc. and Flynt Distributing Company, Inc., and a publisher of HUSTLER magazine, a monthly publication of general circulation which is distributed and read widely throughout the United States and elsewhere.

3.  Defendant Hustler Magazine, Inc. ("Hustler") is, upon information and belief, a corporation organized under the laws of the State of California, with its principal place of business at 2029 Century Park East, Suite 3800, Los Angeles, California 90067, and a publisher of HUSTLER magazine.

      4.  Defendant Flynt Distributing Company, Inc. ("FDC") is, upon information and belief, a corporation organized under the laws of the State of California, with its principal place of business at 2029 Century Park East, Suite 3800, Los Angeles, California 90067.  FDC is the national distributor for HUSTLER magazine.

JURISDICTION

5.  This Court has jurisdiction pursuant to 28 U.S.C. Section 1332 in that there is diversity of citizenship and the amount in controversy, exclusive of interest and costs, exceeds the sum of $10,000.00

COUNT ONE

(Invasion of Privacy)

6.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-5 above as if fully set forth herein.

7.  In the November 1983, Vol. 10, No. 5, issue of HUSTLER magazine, defendants Flynt and Hustler wrote and published or caused to be written and published on the inside front cover of the magazine statements of and concerning plaintiff accompanied by a photograph of the plaintiff.  Defendant FDC distributed the

November 1983 issue of HUSTLER magazine throughout the United States and elsewhere.

8.  The statements and photograph of and concerning plaintiff were in the form of an advertisement for Compari liquor.  A copy of the cover and inside front cover of the November 1983 issue of HUSTLER magazine is annexed hereto as Exhibit A and incorporated by reference herein.

      9.  The text of the statements about plaintiff appears as follows in an interview format in the advertisement under the bold-faced caption "Jerry Falwell Talks About His First Time": 

[TEXT OF CAMPARI PARODY AD APPEARS HERE]

       10.  Defendants have knowingly and without plaintiff's consent, written or otherwise, in their business and for purposes of advertisement or trade, used within the Commonwealth of Virginia and elsewhere the name and photograph of plaintiff, a living
person; plaintiff's photograph and name have been prominently and wrongfully exhibited on the inside front cover of the November 1983 issue of HUSTLER magazine in violation of Virginia Code Section 8.01-40.

11.  Defendants have deliberately, knowingly and unlawfully used, displayed, distributed and published the name and photograph of plaintiff, not in connection with an item of news or the dissemination of newsworthy information, but rather accompanied by fictional and libelous textual material, merely to attract the attention of the public for the purpose of enhancing the sales of HUSTLER magazine.

12.  Defendants' unlawful and wrongful use, display, publication and distribution of plaintiff's name and photograph in the November 1983 issue of HUSTLER magazine have caused plaintiff great mental distress and anguish, humiliation, exposure to public ridicule, hatred and contempt, and by reason thereof, plaintiff has sustained,  is now sustaining and will continue to sustain intense mental suffering and distress which have greatly interfered with his personal and professional life, including his reputation and effectiveness as a fundamentalist minister, and otherwise damaged plaintiff, in the amount of $5,000,000.

13.  Defendants, and each of them, knew or should have known prior to publication and distribution of the November 1983 issue of HUSTLER magazine, that they were using plaintiff's name and photograph for purposes of advertising or trade without his written consent, rendering defendants, and each of them, liable to plaintiff for punitive damages in the amount of $10,000,000.

COUNT TWO

(Libel)

4.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-9 above as if fully set forth herein.

15.  The foregoing publication of and concerning plaintiff, together with its inferences and innuendos, is false and defamatory in that it was meant by defendants, and is intended to mean, and was and is understood by readers of HUSTLER magazine as meaning, among other things, that plaintiff comits illegal, immoral and reprehensible acts, that he is an alcoholic and that he is insincere and hypocritical in his work as a fundamentalist minister.

16.  Such defamation of plaintiff is libelous per se in that it imputes to plaintiff a criminal offense involving moral turpitude, imputes to plaintiff unfitness to perform the duties of his office as a fundamentalist minister and want of integrity in the discharge of such duties, and prejudices plaintiff in his calling as a fundamentalist minister.

17.  The purpose and intent of the foregoing publication was and is to expose plaintiff to public hatred, contempt, aversion and disgrace and to induce an evil and unsavory opinion of him in the minds of the community, and tends to disparage and damage plaintiff in his office, profession or trade.  Plaintiff's effectiveness as a fundamentalist minister is based on trust and confidence in his morality, honesty and sincerity, which trust and confidence is

directly threatened by defendants' accusations of criminality, immorality and insincerity.

18.  The foregoing publication was falsely and maliciously published and/or distributed by the defendants of and concerning the plaintiff without plaintiff's consent.  At the time of such publication and distribution,  defendants knew or should have known, that the matters asserted of and concerning plaintiff were untrue and libelous, or made such assertions and statements in reckless disregard of their truth, and in publishing and distributing such false and defamatory matters, the defendants were actuated by actual malice and wrongfully, recklessly and willfully intended by said publication to injure plaintiff in complete disregard of his reputation and good name.

19.  By reason of the foregoing, plaintiff has been injured in his good name, has suffered mental anguish and distress, has been exposed to public hatred, contempt, aversion, disgrace and other unsavory public opinion, has been injured in the esteem in which he has been held as an individual, has suffered a diminution of his respectability in his personal and business dealings and his reputation and effectiveness as a fundamentalist minister, all to his damage in the amount of $5,000,000 compensatory damages and $10,000,000, punitive damages.

COUNT THREE

(Intentional Infliction of Emotional Distress)

20.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-9 above as if fully set forth herein. 

21.  In publishing and distributing the foregoing publication, defendants acted willfully, intentionally, recklessly and maliciously and their conduct was outrageous, extreme and intolerable in that it offends generally accepted standards of decency and morality.

22.  The aforesaid wrongful conduct on the part of the defendants amounted to an intentional infliction of mental suffering and severe emotional distress upon the plaintiff.  In particular and without limiting the generality of the foregoing, the references to plaintiff and use of his name and photograph on the inside front cover of the November 1983 issue of HUSTLER magazine, accusing plaintiff of illegal, immoral and reprehensible acts, considered together in the context of the other textual materials, photographs and cartoons contained in said magazine, caused plaintiff severe emotional anguish and distress.

23.  By reason of the foregoing, plaintiff has been injured in the amount of $5,000,000 in compensatory damages and is also entitled to $10,000,000 in punitive damages.

COUNT FOUR

(Invasion of Privacy)

24.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-9 above as if fully set forth herein.

25.  In the March 1984, Vol. 10, No. 9, issue of HUSTLER magazine, defendants Flynt and Hustler republished the advertisement of and concerning the plaintiff which had earlier appeared in the November 1983 issue of HUSTLER magazine.  Defendant

Defendant FDC distributed the March 1984 issue of HUSTLER magazine throughout the United States and elsewhere.  A copy of the cover and page 20 of the March 1984 issue of HUSTLER magazine is annexed hereto as Exhibit B and incorporated by reference herein.

26.  Defendants have knowingly and without plaintiff's consent, written or otherwise, in their business and for purposes of advertisement or trade, used within the Commonwealth of Virginia and elsewhere the name and photograph of plaintiff, a living person; plaintiff's photograph and name have been prominently and wrongfully exhibited at page 20 of the March 1984 issue of HUSTLER magazine in violation of Virginia Code Section 8.01-40.

27.  Defendants have deliberately, knowingly and unlawfully used, displayed, distributed and published the name and photograph of plaintiff, not in connection with an item of news or the dissemination of newsworthy information, but rather accompanied by fictional and libelous textual material, merely to attract the attention of the public for the purpose of enhancing the sales of HUSTLER magazine.

28.  Defendants' unlawful and wrongful use, display, publication and distribution of plaintiff's name and photograph in the November 1983 issue of HUSTLER magazine have caused plaintiff great mental distress and anguish, humiliation, exposure to public ridicule, hatred and contempt, and by reason thereof, plaintiff has sustained, is now sustaining and will continue to sustain intense mental suffering and distress which have greatly interfered with his personal and professional life, including his reputation and effectiveness as a fundamentalist minister, and otherwise damaged plaintiff, in the amount of $5,000,000.

29.  Defendants, and each of them, knew or should have known prior to publication and distribution of the March 1984 issue of HUSTLER magazine that they were using plaintiff's name and photograph for purposes of advertising or trade without his written consent, rendering defendants, and each of them, liable to plaintiff for punitive damages in the amount of $20,000,000.

COUNT FIVE

(Libel)

30.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-5 and 25 above as if fully set forth herein.

31.  The foregoing publication of and concerning plaintiff, together with its inferences and innuendos, is false and defamatory in that it was meant by defendants, and is intended to mean, and was and is understood by readers of HUSTLER magazine as meaning, among other things, that plaintiff comits illegal, immoral and reprehensible acts, that he is an alcoholic and that he is insincere and hypocritical in his work as a fundamentalist minister.

32.  Such defamation of plaintiff is libelous per se in that it imputes to plaintiff a criminal offense involving moral turpitude, imputes to plaintiff unfitness to perform the duties of his office as a fundamentalist minister and want of integrity in the discharge of

such duties, and prejudices plaintiff in his calling as a fundamentalist minister.

33.  The purpose and intent of the foregoing publication was and is to expose plaintiff to public hatred, contempt, aversion and disgrace and to induce an evil and unsavory opinion of him in the minds of the community, and tends to disparage and damage plaintiff in his office, profession or trade.  Plaintiff's effectiveness as a fundamentalist minister is based on trust and confidence in his morality, honesty and sincerity, which trust and confidence is directly threatened by defendants' accusations of criminality, immorality and insincerity.

34.  The foregoing publication was falsely and maliciously published and/or distributed by the defendants or and concerning the plaintiff without plaintiff's consent.  At the time of such publication and distribution, defendants knew or should have known, that the matters asserted of and concerning plaintiff were untrue and libelous, or made such assertions and statements in reckless disregard of their truth, and in publishing and distributing such false and defamatory matters, the defendants were actuated by actual malice and wrongfully, recklessly and willfully intended by said publication to injure plaintiff in complete disregard of his reputation and good name.

35.  By reason of the foregoing, plaintiff has been injured in his good name, has suffered mental anguish and distress, has been exposed to public hatred, contempt, aversion, disgrace and other unsavory public opinion, has been injured in the esteem in which he has been held as an individual, has suffered a diminution of his respectability in his personal and business dealings and his reputation and effectiveness as a fundamentalist minister, all to his damage in the amount of $5,000,000 compensatory damages and $20,000,000, punitive damages.

COUNT SIX

(Intentional Infliction of Emotional Distress)

36.  Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-5 and 25 above as if fully set forth herein.

37.  In publishing and distributing the foregoing publication, defendants acted willfully, intentionally, recklessly and maliciously and their conduct was outrageous, extreme and intolerable in that it offends generally accepted standards of decency and morality.

38.  The aforesaid wrongful conduct on the part of the defendants amounted to an intentional infliction of mental suffering and severe emotional distress upon the plaintiff.  In particular and without limiting the generality of the foregoing, the references to plaintiff and use of his name and photograph at page 20 of the March 1984 issue of HUSTLER magazine, accusing plaintiff  of illegal, immoral and reprehensible acts, considered together in the context of the other textual materials, photographs and cartoons contained in said magazine, caused plaintiff severe emotional anguish and distress.

39.  By reason of the foregoing, plaintiff has been injured in the amount of $5,000,000 in compensatory damages and is also entitled to $20,000,000 in punitive damages.

WHEREFORE, Plaintiff demands judgment against the defendants, jointly and severally, as follows:

(a) On Count One, $5,000,000 compensatory damages and $10,000,000 punitive damages;

(b) On Count Two, $5,000,000 compensatory damages and $10,000,000 punitive damages;

(c) On Count Three, $5,000,000 compensatory damages and $10,000,000 punitive damages;

(d) On Count Four, $5,000,000 compensatory damages and $20,000,000 punitive damages;

(e) On Count Five, $5,000,000 compensatory damages and $20,000,000 punitive damages;

(f) On Count Six, $5,000,000 compensatory damages and $20,000,000 punitive damages; and

(g) On all counts, the costs and disbursements of this action, reasonable attorneys' fees and such other, further and different relief as to the Court seems just and proper.

Respectfully submitted,

REVEREND JERRY FALWELL

By /s/ Howard W. Rhodes Jr., Of Counsel

Norman Roy Grutman, Jeffrey H. Daichman, GRUTMAN MILLER GREENSPOON HENDLER & LEVIN, 505 Park Avenue, New York, New York 10022, (212) 888-1900

Howard W. Rhodes, Jr., RHODES, JENNINGS & LIVINGSTON, P.O. Box 1099, Lynchburg, Virginia 24505-1099, (804) 846-2768


Answer to Complaint

ANSWER TO AMENDED COMPLAINT

Defendants Hustler Magazine, Inc., Flynt Distributing Company, Inc., and Larry C. Flynt answer the Amended Complaint on file herein as follows:

1.  Defendants have no information or belief sufficient to enable them to answer the allegations contained in paragraph 1 of the Amended Complaint, and basing their denial upon that ground, generally and specifically deny each and every allegation contained therein.

2.  Defendants admit that defendant Larry C. Flynt is a citizen of the State of California.  Except as so admitted, defendants generally and specifically deny each and every allegation contained in paragraph 2 of the complaint.

3.  Defendants admit the allegations of paragraph  3 of the Amended Complaint.

4.  Defendants admit the allegations of paragraph 4 of the Amended Complaint.

5.  Defendants generally and specifically deny each and every allegation contained in paragraph 5 of the Amended Complaint.

6.  In answer to paragraph 6 of the Amended Complaint, defendants refer to paragraphs 1 through 5 of this Answer, and by such reference reallege each and every allegation contained therein as though again set forth in full.

7.  Defendants admit that in the November 1983, Vol. 10, No. 5, issue of Hustler Magazine, defendant Hustler Magazine, Inc. published on the inside front cover an ad and personality parody accompanied by a photograph of plaintiff, and that defendant Flynt Distributing Company, Inc. distributed said issue throughout the United States and elsewhere.  Except as so admitted, defendants generally and specifically deny each and every allegation of paragraph 7 of the Amended Complaint.

8.  Defendants admit that the statements and photograph contained on the inside front cover of said issue of Hustler Magazine were in the form of a parody of advertisements for Campari liquor.  Defendants further admit that a copy of the cover and  inside front cover of the November 1983 issue of Hustler Magazine is annexed to the Amended Complaint as Exhibit "A".  Except as so admitted, defendants generally and specifically deny each and every allegation in paragraph 8 of the Amended Complaint.

9.  Defendants admit that the statements reproduced in paragraph 9 of the Amended Complaint are a portion of the statements which appear on the inside front cover of the November 1983 issue of Hustler Magazine.  Except as so admitted, defendants generally and specifically deny each and every allegation of paragraph 9 of the Amended Complaint.

10.  Defendants generally and specifically deny each and every allegation of paragraph 10 of the Amended Complaint.

11.  Defendants generally and specifically deny each and every allegation of paragraph 11 of the Amended Complaint.

12.  Defendants generally and specifically deny each and every allegation of paragraph 12 of the Amended Complaint, and further allege that plaintiff has not suffered damages in the amount of $5,000,000, or damages in any other amount.

13.  Defendants generally and specifically deny each and every allegation of paragraph 13 of the Amended Complaint, and further  allege that plaintiff is not entitled to punitive damages in the amount of $10,000,000, or any other amount.

14.  In answer to paragraph 14 of the Amended Complaint, defendants refer to paragraphs 1 through 9 of this Answer, and by such reference reallege each and every allegation contained therein as though again set forth in full.

15.  Defendants deny each and every allegation of paragraph 15 of the Amended Complaint.

16.  Defendants deny each and every allegation of paragraph 16 of the Amended Complaint.

17.  Defendants deny each and every allegation of paragraph 17 of the Amended Complaint.

18.  Defendants deny each and every allegation of paragraph 18 of the Amended Complaint.

19.  Defendants deny each and every allegation of paragraph 19 of the Amended Complaint, and further allege that plaintiff has not been damaged in the amount of $5,000,000 compensatory damages, or damages in any other amount.  Defendants further allege that plaintiff is not entitled to punitive damages in the amount of $10,000,000, or any other amount.

20.  In answer to paragraph 20 of the Amended Complaint, defendants refer to paragraphs 1 through 9 of the Answer, and by such reference reallege each and every allegation contained therein as though set forth in full.

21.  Defendants deny each and every allegation of paragraph 21 of the Amended Complaint.

22.  Defendants deny each and every allegation of paragraph 22 of the Amended Complaint.

23.  Defendants deny each and every allegation of paragraph 23 of the Amended Complaint, and further allege that plaintiff has not been injured in the amount of $5,000,000 in compensatory damages, or in any amount.  Defendants further allege that plaintiff is not entitled to $10,000,000, or any amount, in punitive damages.

24.  In answer to paragraph 24 of the Amended Complaint, defendants refer to paragraphs 1 through 9 of this Answer, and by such reference reallege each and every allegation contained therein as though again set forth in full.

25.  Defendants admit that in the March 1984, Vol. 10, no. 9, issue of Hustler Magazine, defendant Hustler Magazine, Inc., republished the ad and personality parody which had appeared in the November 1983 issue of Hustler Magazine.  Defendants further admit that defendant Flynt Distributing Company, Inc. distributed the March 1984 issue of Hustler Magazine throughout the United  States and elsewhere.  Defendants further admit that a copy of the cover and page 20 of the March 1984 issue of Hustler Magazine is annexed to the Amended Complaint as Exhibit "B".  Except as so admitted, defendants deny each and every allegation contained in paragraph 25 of the Amended Complaint.

26.  Defendants deny each and every allegation of paragraph 26 of the Amended Complaint.

27.  Defendants deny each and every allegation of paragraph 27 of the Amended Complaint.

28.  Defendants generally and specifically deny each and every allegation of paragraph 28 of the Amended Complaint, and further allege that plaintiff has not suffered damages in the amount of $5,000,000, or damages in any other amount.

29.  Defendants generally and specifically deny each and every allegation of paragraph 29 of the Amended Complaint, and further allege that plaintiff is not entitled to punitive damages in the amount of $20,000,000, or any other amount.

30.  In answer to paragraph 30 of the Amended Complaint, defendants refer to paragraph 1 through 5 and 25 of this Answer, and by such reference reallege each and every allegation contained therein as though again set forth in full.

31.  Defendants deny each and every allegation of paragraph 31 of the Amended Complaint.

32.  Defendants deny each and every allegation of paragraph 32 of the Amended Complaint.

33.  Defendants deny each and every allegation of paragraph 33 of the Amended Complaint.

34.  Defendants deny each and every allegation of paragraph 34 of the Amended Complaint.

35.  Defendants deny each and every allegation of paragraph 35 of the Amended Complaint, and further allege that plaintiff has not been damaged in the amount of $20,000,000 compensatory damages, or damages in any other amount.  Defendants further allege that plaintiff is not entitled to punitive damages in the amount of $20,000,000, or any other amount.

36.  In answer to paragraph 36 of the Amended Complaint, defendants refer to paragraphs 1 through 5 and 25 of this Answer, and by such reference reallege each and every allegation contained therein as though again set forth in full.

37.  Defendants deny each and every allegation of paragraph 37 of the Amended Complaint.

38.  Defendants deny each and every allegation of paragraph 38 of the Amended Complaint.

39.  Defendants deny each and every allegation of paragraph 39 of the Amended Complaint, and further allege that plaintiff has not been injured in the amount of $5,000,00 in compensatory damages, or in any amount.  Defendants further allege that plaintiff is not entitled to $20,000,000, or any amount, in punitive damages.

FIRST AFFIRMATIVE DEFENSE

Count One of the Amended Complaint, for Invasion of Privacy, fails to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

Count Two of the Amended Complaint, for Libel, fails to state a claim upon which relief can be granted.

THIRD AFFIRMATIVE DEFENSE

Count Three of the Amended Complaint, for Intentional Infliction of Emotional Distress, fails to state a claim upon which relief can be granted.

FOURTH AFFIRMATIVE DEFENSE

Count Four of the Amended Complaint, for Invasion of Privacy, fails to state a claim upon which relief can be granted.

FIFTH AFFIRMATIVE DEFENSE

Count Five of the Amended Complaint, for Libel, fails to state a claim upon which relief can be granted.

SIXTH AFFIRMATIVE DEFENSE

Count Six of the Amended Complaint, for Intentional Infliction of Emotional Distress, fails to state a claim upon which relief can be granted.  

SEVENTH AFFIRMATIVE DEFENSE

The ad and personality parody published in Hustler Magazine is and was protected First Amendment expression.

EIGHTH AFFIRMATIVE DEFENSE

In publishing an ad and personality parady using the name and photograph of plaintiff, a public figure, defendants did not act with knowledge of falsity or reckless disregard for the truth.

NINTH AFFIRMATIVE DEFENSE

The ad and personality parody was obviously a parody which was not susceptible of being interpreted as an allegation of any facts regarding plaintiff, and was clearly labeled as such.

TENTH AFFIRMATIVE DEFENSE

Plaintiff by his conduct is estopped to assert his causes of action.

ELEVENTH AFFIRMATIVE DEFENSE

The publication complained of was privileged as a fair comment upon a matter of public interest.

TWELFTH AFFIRMATIVE DEFENSE

Plaintiff, by his conduct, has aggravated his damages, if any.

THIRTEENTH AFFIRMATIVE DEFENSE

The statements allegedly made by defendants, if any, were not made of or concerning the plaintiff.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff, a public figure, has surrendered any right of privacy which he might otherwise have.  

WHEREFORE, defendants pray judgment against plaintiff as follows:

1.  That plaintiff take nothing by his complaint;

2.  for costs of suit herein;

3.  for reasonable attorneys fees; and

4.  for such other and further relief as the court deems just and proper.

Respectfully submitted,

HUSTLER MAGAZINE, INC., FLYNT DISTRIBUTING COMPANY, INC., LARRY C. FLYNT

By /s/ David O. Carson, Of Counsel

Alan L. Isaacman, David O. Carson, COOPER, EPSTEIN & HUREWITZ, A Professional Corporation, 9465 Wilshire Boulevard, Suite 800, Beverly Hills, California 90212, (213) 278-1111

Arthur P. Strickland, STRICKLAND & ROGERS, 131 Kirk Avenue West, P.O. Box 2886, Roanoke, Virginia 24001, (703) 982-7787

Key Instructions:


COURT'S INSTRUCTION TO THE JURY REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Now, I'll ask you to go to question number three (3).

3A says: "Do you find by a preponderance of the evidence that the defendant, Larry C. Flynt, conducted himself in such a manner in connection with the article in question as to intentionally inflict emotional distress upon the plaintiff?"

3B asks the same question as to Hustler Magazine.  3C asks the same question as to Flynt Distributing Company.

The court tells you that in answering this question, in order to answer all or any part of it "yes" four (4) elements must be shown by a preponderance of the evidence.  One: That the wrong-doers' conduct was intentional or reckless.  This element is satisfied where the wrong-doer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result.  Two: That the conduct was outragious [sic] and intolerable in that it offends against the generally accepted standards of decency and morality.  This requirement is aimed at limiting frivolous suits and avoiding litigations in situations where only bad manners and mere hurt feelings are involved.  Three: There was a casual [sic] connection between the wrong-doer's conduct and the emotional distress.  And four: That the emotional distress was severe.

DEFENDANTS' REQUESTED INSTRUCTIONS REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

INSTRUCTION NO. 18

In order for you to find in favor of plaintiff on his claim for intentional infliction of emotional distress, you must find that the plaintiff has proven, by a preponderance of the evidence, each of the following facts:

(1) That defendants' conduct towards plaintiff was extreme and outragious [sic]; and

      (2) That defendants engaged in such conduct with the intention of causing plaintiff to suffer severe emotional distress

or in reckless disregard of the likelihood that plaintiff would suffer severe emotional distress; and

(3) That plaintiff suffered severe emotional distress as a direct and proximate result of defendants' conduct.

In addition, in order to conclude that the defendants' intentionally inflicted emotional distress upon plaintiff by publishing the Campari item, you must find by clear and convincing evidence that the defendants acted with actual malice, as I have already defined it.

INSTRUCTION NO. 19

In order for conduct to constitute "extreme and outrageous conduct", as that term is used in the law, such conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.  It must be such conduct as would distress a reasonable man of ordinary sensibilities.

Mere insults or accusations do not constitute "extreme and outrageous conduct".

INSTRUCTION NO. 20

       In order for plaintiff to recover on his claim for intentional infliction of emotional distress, he must show that he suffered severe emotional distress.  The distress suffered must be such that no reasonable man could be expected to endure it.  The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the defendants had knowledge.  Mere hurt feelings do not constitute "severe emotional distress".