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06_Brandon estate of Brandon v. County of Richardson

Despite this knowledge, Laux proceeded to use crude and dehumanizing language  Examples of such language include statements such during the entire interview.  as “they got ready to poke you,” “sinking it in your vagina,” “stuck it in your box or in your buttocks,” “he got a spread of you,” “had spread you out,” and “was he fingering you?”

At several points during the interview, Laux expressed disbelief at what  Brandon was telling him, through both verbal statements and his tone of voice.  Laux told Brandon that he “can't believe” that Lotter did not “stick his hand in you or his finger in you” during the incident in which Lotter and Nissen pulled  He accused Brandon of giving differing accounts down Brandon's pants.  regarding the position of her legs during the rapes when in fact Brandon's  He expressed disbelief that Brandon could be 21 accounts were consistent.  years old and yet the rapists would have “trouble getting it in.”

Some of Laux's statements indicate a belief that Brandon willingly participated in the sexual acts, such as “[d]id you work it up for him?” (referring to the rapist's penis) and “you were already spread out back there  Laux asked other questions which expressed ready for him, waiting on him.”  simply a prurient interest in the rapes, including: “[D]id it feel like he stuck it in very far or not?”; “Did he have a hard on when he got back there or what?”; “Did he take a little time working it up  ?”; and “Did he play with your breasts or anything?”

Laux also asked questions that were entirely irrelevant as to whether Brandon had been raped, such as “Did he tell you anything about this is how they do it   Did he think it was funny?”  in the penitentiary?” and “Was he enjoying it?  Laux proceeded to question Brandon about her gender identity disorder, asking her if she had kissed other girls, which had nothing to do with the situation  Olberding even interjected at this point, telling Brandon under investigation.  that she did not have to answer the questions Laux was asking about her gender  Laux himself admitted at trial that Brandon's gender identity disorder.  identity disorder had nothing to do with whether Brandon had been raped.

The tone used during the interview is also something to be considered in  See Drejza v. Vaccaro, 650 determining the outrageousness of Laux's conduct.   The tape recording reveals that Laux's tone throughout A.2d 1308 (D.C.1994). The tone in which the interview was demeaning, accusatory, and intimidating.  many of the questions were asked expressed Laux's disbelief of what Brandon was telling him and that Laux was not taking Brandon seriously.

 There is no question that The above-discussed facts are not in dispute.  Laux was in a position of authority in relation to Brandon and that Laux knew Brandon was in a particularly vulnerable emotional state prior to conducting the  The facts of what happened during the actual interview itself are interview.  also not subject to dispute because the tape recording provides a record of exactly what was said during the interview and the manner in which those words were said.

The county does not dispute these facts, but attempts to justify Laux's conduct, claiming that Laux was pursuing the legitimate objectives of clarifying inconsistencies in Brandon's account, fact finding, and preparing Brandon to  Laux also claimed that his manner testify against Lotter and Nissen at trial.  of questioning Brandon was due, in part, to the fact that Brandon was taking a  However, these justifications do not withstand long time to answer questions.   A review of the tape recording reveals that Brandon's answers were scrutiny.   Having listened to the spontaneous and were given without hesitation. tape-recorded interview, we also find no instances in which Laux attempted to  Furthermore, the clarify any actual inconsistencies in Brandon's account.  questions Laux asked which were entirely irrelevant to whether the rapes had occurred and that expressed simply a prurient interest in the rapes can hardly be said to constitute legitimate “fact finding.”

Any claim that Laux was preparing Brandon to testify at trial is also not  The interview in the present case occurred only hours after persuasive. The alleged perpetrators had not yet been Brandon was beaten and raped. As arrested and there was no imminent trial to prepare for at that point.  stated in Drejza, 650 A.2d at 1315 n. 18:

As a matter of common sense, an interview with a distraught rape victim an hour or so after her ordeal ended was hardly the occasion for a detective to question her like a defense attorney or a prosecutor, to try to assess her ability to withstand potential humiliating aspects of a criminal trial, or to  Such an inquiry could be conducted challenge her intention to press charges.  at a later date, preferably by a prosecutor, after the victim had been given a reasonable amount of time to regain control over her emotions and faculties It would surely be reasonable for her not to expect to be challenged or belittled, almost as soon as she arrived, by the very authorities whose assistance she was requesting.

Not only do the justifications offered by the county for Laux's conduct not withstand scrutiny, such justifications do not change the undisputed facts regarding the circumstances under which the interview was conducted or what  These occurred during the interview as revealed by the tape recording.  justifications are simply the county's interpretation of the undisputed facts.

Likewise, the testimony given by the prosecutor who testified on behalf of  the county was only a “characterization” of the undisputed underlying facts.  The prosecutor rendered no opinion as to whether Laux's conduct during the  When asked to “characterize” Laux's interview was extreme and outrageous.  conduct during the interview, the prosecutor testified that Laux's conduct was less “confrontational” than the conduct of many officers she had witnessed  However, many of Laux's statements and interviewing sexual assault victims.  questions, such as “did it feel like he stuck it in very far or not?”; “[d]id he tell you anything about this is how they do it in the penitentiary?”;  “[w]as he enjoying it?”; “[d]id he think it was funny?”; “[d]id he have a hard on when he got back there or what?”; “[d]id you work it up for him?”;  and “when he got in the back seat you were already spread out back there ready for him, waiting on him” neither challenge nor test Brandon's version of the events.  Such questions exhibit simply a prurient interest in the rapes and are not   Furthermore, th relevant to whether Brandon had been raped. e prosecutor gave no testimony regarding whether the interviews she had witnessed had occurred within hours of the sexual assault of the victim, as did the interview conducted by Laux.

The prosecutor further testified that she had been much more confrontational than Laux when interviewing rape victims regarding areas where the victim might  However, in the present case, there are no instances have been inconsistent.  in which Laux attempted to clarify any actual inconsistencies in Brandon's Additionally, the prosecutor testified that the interviews she account.  conducted occurred prior to depositions, preliminary hearings, and trials and  that she had never interviewed a rape victim shortly after the rape occurred.  Such testimony is consistent with the fact that the role of a prosecutor in preparing a rape victim to testify at trial is different from the role of a law enforcement officer questioning the victim shortly after the rape occurred.

Furthermore, of critical importance is the fact that the record does not show that the prosecutor listened to the actual tape recording of the December 25, The record makes reference only to her review of the 1993, interview. There is no testimony from the prosecutor regarding transcribed interview.  Laux's tone during the interview, which is very significant in determining whether Laux's conduct was extreme and outrageous.

Every law enforcement officer who testified in this case testified as to the  Olberding, who was present during the inappropriateness of Laux's conduct.  interview, left the interview at one point because he disagreed with the way Laux was conducting the interview and interjected at another point during the interview, telling Brandon that she did not have to answer questions about her  Caverzagie, a law enforcement officer who listened gender identity disorder.  to the tape-recorded interview, testified that he believed that “just about everything” Laux said during the interview was “very unprofessional” and agreed that such conduct was outrageous.

Based upon the undisputed facts in this case, we determine as a matter of law that Laux's conduct was extreme and outrageous, beyond all possible bounds of decency, and is to be regarded as atrocious and utterly intolerable in a  The district court erred in not so holding. civilized community.

Although the district court determined that Laux's conduct was not extreme  and outrageous, the district court nevertheless went on to find that JoAnn had failed to prove the third element of intentional infliction of emotional  Liability arises distress-that Brandon suffered as a result of Laux's conduct.  for intentional infliction of emotional distress only when emotional distress Hassing v. Wortman, 214 Neb. 154, 333 has in fact resulted and is severe.  46, comment j. (1965). N.W.2d 765 (1983); Restatement (Second) of Torts § Whether severe emotional distress can be found is a question of law; whether   Restatement, supra. it existed in a particular case is a question of fact.

Although outrageous conduct and severe emotional distress are separate  elements of the tort of intentional infliction of emotional distress, the two American Medical Intern. v. Giurintano, 821 S.W.2d 331 are related.   The extreme and outrageous character of the conduct is itself (Tex.App.1991).  important evidence that severe emotional distress existed on account of the  See, also, Brower v. Ackerley, 88 Wash.App. 87,  Restatement, supra.  conduct.  943 P.2d 1141 (1997); Behringer v. Behringer, 884 S.W.2d 839 (Tex.App.1994); American Medical Intern., supra.