Court Rejects Torts Claims of Taunting Fan Against Russell Westbrook – JONATHAN TURLEY

In teaching torts, I begin my discussion of the intentional infliction of emotional distress by having students write in their notes “not everything is the infliction of emotional distress.” The reason for the cautionary line is that law students tend (particularly on exams) to call any insult an infliction of emotional distress, ignoring the elements of the tort requiring severe forms of conduct or speech to qualify. That line came to mind in reading the recent decision of the Utah Court of Appeals rejecting tort claims, including an IIED claim, in Keisel v. Westbrook. The case involves Russell Westbrook, the Thunder’s point guard who reacted angrily to the taunting of Shane Keisel, a Jazz fan, at a game in March 2019. Keisel brought an array of tort claims that have now been correctly rejected by the courts.

The incident arose during the game when Keisel (who was sitting next to his girlfriend Jennifer Huff) began to taunt Westbrook from a few rows up from the court. Keisel said something to Westbrook that included the phrase “on your knees.” … [In response], Westbrook shouted: “I swear to God, I’ll f**k you up, you and your wife, I’ll [f**k] you up, … I promise you on everything I love, on everything I love, I promise you.” As noted in the interview below, Keisel insists that he never swore at the player and was simply encouraging him to calm down.

Keisel then went to a real court to allege that he was defamed and left in a critical state of emotional distress from the encounter. Yet, on an IIED, a plaintiff must show that the defendant “(a)intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality; (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result; and (c) that severe emotional distress resulted as a direct consequence of the defendant’s conduct.”

The court of appeals described that this tort does not arise from conduct that is merely  “unreasonable, unkind, or unfair” but must be “so severe as to evoke outrage or revulsion.” In other words, not everything is the intentional infliction of emotional distres.

Even with the claim of negligent infliction of emotional distress, the conduct must “must be severe; it must be such that a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.”  Thus, even though the outrageous conduct is not needed as an element, it still covers conduct well beyond the pale to establish a severe response.

Moreover, the court rejects the claim that the couple felt physically intimidated by Westbrook’ words.

“when confronted with claims like these, a court must be capable of distinguishing between actual threats of violence and something that was merely profane posturing. Here as elsewhere, context is key.

As recognized by the district court, Westbrook’s outburst occurred “in the presence of security personnel and thousands of spectators,” and Westbrook was separated from Keisel and Huff by several rows of spectators. As also recognized by the district court, Keisel and Huff then ‘remained in the Arena to watch the rest of the game,’ a choice that belies any suggestion that they really thought there was a ‘real risk that Westbrook would make good on his threat.’”

Similarly, the court rejects vague claims of a “power imbalance between them and Westbrook.”

The court correctly notes that such exchanges are regrettable but not actionable in our society:

“Profane outbursts are of course unfortunate and disfavored in civil society. But even so, courts commonly hold that, without something more, a profane outburst isn’t enough to sustain an intentional infliction of emotional distress claim. See, e.g.McGrew v. Duncan, 333 F. Supp. 3d 730, 742–43 (E.D. Mich. 2018); Jiminez v. CRST Specialized Transp. Mgmt., Inc., 213 F. Supp. 3d 1058, 1065–66 (N.D. Ind. 2016); Walker v. Mississippi Delta Comm’n on Mental Health, No. 4:11CV044, 2012 WL 5304755, at *9–10 (N.D. Miss. Oct. 25, 2012); Lawson v. Heidelberg E., 872 F. Supp. 335, 336, 338–39 (N.D. Miss. 1995); Groff v. Southwest Beverage Co., Inc., 997 So. 2d 782, 787 (La. Ct. App. 2008); Lombardo v. Mahoney, No. 92608, 2009 WL 3649997, at *1–2 (Ohio Ct. App. Nov. 5, 2009). And while we’re aware of no similar case that arose in the negligent infliction of emotional distress context, we believe that a similar result would likely be reached if such outbursts were assessed under the “severe” conduct rubric that’s used in such cases.

Moreover, in assessing any emotional distress claim, a court must of course consider the context in which the offending conduct occurs. Words that might be outrageous or severe if spoken at a funeral may well be interpreted differently if they are spoken by the proverbial sailors at sea….

Westbrook’s outburst occurred at a professional sporting event, a place where society has unfortunately come to expect some amount of intemperate behavior. And the outburst at issue also wasn’t unprovoked. Again, Keisel admitted that Westbrook was responding to an initial statement from Keisel that could have been understood as a sexual if not homophobic slur. These details of course change the calculus as to whether Westbrook’s response was so outrageous or severe that it could support an emotional distress claim.

[P]laintiffs 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. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.[“] While this comment from the Restatement [of Torts] was directed at the “outrageousness” element of an intentional infliction of emotional distress claim, the sentiment has some natural bearing on the “severe” element of a negligent infliction claim as well. And it largely explains why the profane statements from Westbrook do not support the claims at issue.

We certainly don’t condone what Westbrook said. Sports and society alike would be better off without such language. And for that matter, the other fans who were sitting nearby deserved far better from both Westbrook and Keisel. These two adults could and should have found a way to disagree better.”

With that, Westbrook succeeded in a slam dunk on all of the tort claims.

I was able to find this video of Keisel after the altercation. He denies any swearing or seriously taunting the player.  He also calmly recounts how his comments were an effort to get Westbrook to calm down and that there was no provocation on their part. That could well be the case, but it does not help establish these tort claims. Indeed, the video could also be seen as undermining the claim that he was experiencing severe emotional distress after the encounter:

Here is the opinion: Keisel v. Westbrook

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